Evans v Director of Public Prosecutions
[2000] NSWSC 1005
•6 November 2000
CITATION: Evans v DPP [2000] NSWSC 1005 revised - 6/11/2000 FILE NUMBER(S): SC 11805/2000 HEARING DATE(S): 04/09/2000 JUDGMENT DATE: 6 November 2000 PARTIES :
Maxwell Hilton Evans v The Director of Public ProsecutionsJUDGMENT OF: James J at 1
LOWER COURT
JURISDICTION :Local Court LOWER COURT
FILE NUMBER(S) :LOWER COURT
JUDICIAL OFFICER :J E Garbett
COUNSEL : J Andrews - Plaintiff
Ms R Burgess - DefendantSOLICITORS: T A Murphy - LAC
SE O'Connor - DPPCATCHWORDS: Magistrate courts - Justices Act s65 - leave to withdraw information - autrefois acquit - substitution of charge - abuse of process DECISION: Summons dismissed
THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISIONJAMES J
Monday 6 November 2000
11805/2000 - Maxwell Hilton Evans v The Director of Public Prosecutions
JUDGMENT
1 HIS HONOUR: In these proceedings the plaintiff Maxwell Hilton Evans (“Mr Evans”) seeks an order against the defendant the Director of Public Prosecutions, quashing an order made by Mr J E Garbett Local Court magistrate on 16 May 2000, adjourning criminal proceedings which had been brought in the Local Court against Mr Evans; an order dismissing proceedings against Mr Evans alleging an offence under s 527C(1)(a) of the Crimes Act and an order permanently staying proceedings against Mr Evans charging an offence under s 527C(1)(d) of the Crimes Act. The informant in the Local Court proceedings was a police officer Constable Dietrich but the Director of Public Prosecutions was subsequently substituted as a party for Constable Dietrich.
2 The evidence in the proceedings in this Court consists of an affidavit by a solicitor in the employ of Mr Evans’ solicitor, to which is annexed a transcript of the proceedings in the Local Court on 16 May 2000; a further affidavit by the same solicitor, to which are annexed copies of the charge cover sheet and the charge sheets in the Local Court and some of the exhibits in the Local Court proceedings, including a street map, a transcript of an interview of Mr Evans by Constable Dietrich on 1 December 1999 and a statement by another police office Constable Dykes, who participated in the arrest of Mr Evans on 1 December 1999 and in the execution of a search warrant at Mr Evans’ home on 1 December 1999; and an affidavit by Ms Anna Goulston, solicitor, who appeared for Mr Evans in the Local Court on 16 May 2000. There was no oral evidence in the proceedings in this Court.
3 The following statement of facts is taken from the documentary evidence I have referred to.
4 Constable Dietrich laid an information against Mr Evans, alleging that on 29 November 1999 Mr Evans had in his custody Australian currency being paper notes, which might be reasonably suspected of being stolen or otherwise unlawfully obtained. This was an allegation of an offence under s 527C(1)(a) of the Crimes Act, which provides:-
“Any person who:
(a) has anything in his or her custody…
which thing may be reasonably suspected of being stolen or otherwise unlawfully obtained shall be liable on conviction before a Local Court constituted by a magistrate sitting alone to imprisonment for six months or to a fine of five penalty units”.
5 Subsection (2) of s 527C provides a defence in a prosecution for an offence under ss(1) but it is unnecessary in the present case to refer to make any further reference of ss(2).
6 At the beginning of the hearing in the Local Court on 16 May 2000 the police prosecutor who was appearing for the informant particularised the Australian currency referred to in the information as being four Australian ten dollar notes and three Australian twenty dollar notes. The notes were unusual in that, although still legal tender, they were old notes of a kind no longer in circulation, even though the particular notes were in new, almost mint, condition.
7 The first witness for the prosecution in the Local Court was Constable Dietrich.
8 In his evidence Constable Dietrich said that on 29 November 1999 a complaint had been made to the police that a house had been broken into and some Australian bank notes stolen.
9 Later on 29 November 1999 Constable Dietrich attended a bottle shop in the neighbourhood and was informed by the proprietor, Mr Tom Banborough, that earlier that day at the bottle shop a man had exchanged some old Australian notes for newer notes. Constable Dietrich formed a belief that the man who had exchanged the notes had been Mr Evans.
10 On 1 December 1999 police executed a search warrant at Mr Evans’ home, which was about 500 metres away from the house which had been broken into. No property of any relevance was found in the search of Mr Evans’ home.
11 Later on 1 December 1999 Mr Evans was arrested and taken to Maroubra Police Station, where he was interviewed by Constable Dietrich in an electronically recorded interview.
12 A transcript of the interview of Mr Evans by Constable Dietrich was admitted into evidence in the proceedings in the Local Court. In his answers in the interview Mr Evans said that, as a favour to a friend to whom he owed money, he had agreed to exchange some old bank notes and that he had subsequently gone to the bottle shop and exchanged the notes. Mr Evans denied having had anything to do with the breaking and entering. Mr Evans agreed with a leading question put to him that no property had been found at his home, when the search warrant was executed.
13 After the transcript of the interview had been admitted into evidence, the following exchange occurred between the magistrate and the police prosecutor. (In this extract, as in other extracts, from the transcript of the proceedings in the Local Court on 16 May 2000, I have corrected some obvious typographical errors and have supplied some punctuation).14 Subsequently Constable Dietrich completed giving his evidence. In the cross-examination of Constable Dietrich the following question and answer occurred:-
“Bench:… The thought’s just occurred to me. This is under s 527C(1)(a) - in his custody. Don’t the goods have to be in the custody of the person?
Prosecutor: Yes, Your Worship, it’s something that I was alerted to a little earlier.
Bench: It may be under (d) or something but--
Prosecutor: Yes, it may be a case where the prosecution would be seeking to amend the subsection but I was going to seek some more instructions from the informant after, he was cross-examined.
Bench: Yes, you’ll have to do it through the prosecution case, won’t you?
Prosecutor: Yes.
Bench: Otherwise, I won’t allow it. Yes, thank you.”
“Q. And he (Mr Evans) didn’t have any of the notes
that are the subject of the indictment in his possession at the time of arrest, did he?
A. No, he didn’t”.
15 Constable Dykes and Mr Banborough then gave evidence. After Mr Banborough had finished giving evidence, the lunch adjournment was taken.
16 When the hearing was resumed after lunch, the police prosecutor applied “to amend the charge to a charge under s 527C(1)(d)”. Ms Goulston opposed the application to amend, on the grounds that the offence created by s 527C(1)(d) of the Crimes Act is a different offence from the offence created by s 527C(1)(a). Section 527C(1)(d) provides that any person who “… gives custody of any thing to a person who is not lawfully entitled to possession of the thing”, which thing may be reasonably suspected of being stolen or otherwise unlawfully obtained, shall be liable on conviction before a Local Court to the penalty indicated in s 527C.
17 Notwithstanding Ms Goulston’s opposition, the magistrate decided that he should allow the amendment, so that the offence charged would be an offence under s 527C(1)(d). The charge as amended alleged that Mr Evans had given custody of the bank notes to Tom Banborough, a person not legally entitled to the same.
18 A plea of not guilty was entered to the charge under s 527C(1)(d). The police prosecutor then sought to tender the evidence which had already been given, in support of the charge under s 527C(1)(d). The magistrate allowed Ms Goulston time to consider her position, regarding the tender by the police prosecutor of the evidence already given and regarding the recalling of witnesses.
19 The prosecutor remarked:-
“Your Worship, I’m not sure whether this might expedite these proceedings but if I might just suggest this course. If your Worship was not mindful to allow the matter to proceed in this way, I would not be seeking to proceed on the charge under 1(a) and would be just laying a fresh information before you today”.
20 When the hearing resumed, Ms Goulston informed the magistrate that she had already made an objection to the making of the amendment sought by the prosecution and she maintained that objection but she did not wish to ask any further questions of the prosecution witnesses.
21 A little later in the proceedings the magistrate expressed concern about the amendment which had been made. It is appropriate to set out in full an extensive extract from the transcript.
“Bench: I must say I do have some concern amending a charge which is essentially laying a separate charge at this stage of proceedings. You indicated earlier that another course was to not proceed with this matter as it was and then lay a charge separately and that may be a preferable way then it’s done according to the book isn’t it?
Prosecutor: Yes but, as I said earlier, it is arriving at the same result.
Bench: Yes. It may well be.
Prosecutor: It’s unlikely that that’s a process that isn’t sort of done in 5 minutes.
Bench: Yes, well I just wanted to avoid a lot of duplication and inconvenience for everyone concerned but I just have concerns whether that’s the proper way to deal with it.
Prosecutor: That being the case your Worship, I’d be seeking that the evidence from this hearing be tendered in that hearing and, if that were not allowed, then the case would need to begin again.
Bench: What’s the situation of the defendant?. Is he in custody on this matter or what?
Goulston: He’s not in custody on this matter but my instructions are that Mr Evans was hoping to have this matter dealt with and finalised today.
Bench: Well I could finalise and deal with the first charge but I just have real concerns whether I should proceed, in view of the objections and, if there’s no consent to the change, whether that’s a proper way of doing it and there is no consent, so I don’t think it can be determined today, can it, because what you’ll do is lay a separate charge. That’s what you had as an alternative.
Prosecutor: Yes that being the case it will not be finalised today.
Goulston: Well in terms of that course of action relating to, I assume it means withdrawing or that charge under 1(a) being determined to finality today by your Worship and then a fresh charge being laid, I’d make the same objections that I made with respect to amendment of the initial charge that, given that the court has heard evidence from three prosecution witnesses, a fresh charge can’t be laid and all that evidence heard again at this stage of the proceedings.
Bench: Why can it not be heard? It’s not res judicata, is it. It’s a separate, different offence.
Goulston: Well it might be an issue perhaps of double jeopardy or something of that nature, if he’s, that’s an issue that could be considered at a later time but certainly I’d be objecting to that course of action on the same grounds and that course would cause prejudice to the defendant, if he, as I said he’s not in custody on this matter but certainly he’s been waiting for some time for this matter to be heard and if another hearing date is necessary, then that will be another period of waiting for him for the charge to be finalised and it would be prejudicial to him in my submission.
Bench: Well it’s the same position as all persons waiting for their charge to be heard, isn’t it. I’ll deal with this matter as follows. Now it probably requires a bit of back tracking, because at an earlier stage I did agree to the amendment to this charge. In view of the whole of the proceedings I would, well, first of all I would consider it proper that I go back. I take a step back. I make no decision on the 527C(1)(d) matter. I consider that should be appropriately dealt with by laying a proper charge and then that matter then be separately pleaded to and dealt with in the normal way.
I therefore go back to then dealing with the offence under s 527C(1)(a) which is now before me and what is your position there? You’re seeking to change that to (1)(d), aren’t you. Well, as far as s(1)(a) is concerned, your case is completed.
Prosecutor: No, it’s not actually.
Bench: Well how shall we deal with that then because I can’t dismiss it, until you’ve completed your case.
Prosecutor: So your Worship is not allowing the amendment.
Bench: Well, how can I do that without consent? How can I?
Prosecutor: Yes, I understand your Worship. If that is the position, I just needed to clarify it for myself, then I’d be seeking to withdraw it.
Bench: Yes, I think that’s probably the best way, because upon what law do you rely to simply amend it at this stage?
Prosecutor: Yes I was only making the submissions, because we’re going to arrive at the same situation whether it be--
Bench: Look I think we’re all just trying to be practical about it and deal with it. Well that case, that’s withdrawn by consent.
Goulston: Yes.
Bench: So we’ve reverted to s 527(1)(a). Just to make it totally clear on the record. That is withdrawn by consent. So at the present time there is nothing as far as (a)527C charge is concerned against Maxwell Evans.
Prosecutor: Yes, that is the case your Worship. Does your Worship find it appropriate to have the fresh charge laid today?
Bench: I won’t enter into that. That’s entirely in your hands. I don’t see why not.
Prosecutor: Thank you, your Worship.
Bench: I presume you don’t wish to deal with it today or do you? If you want to deal with it today, I’ll deal with it.
Prosecutor: Your Worship I understand it will take about 10 or 15 minutes to lay a fresh charge and the defendant wishes to have it before the court today.
Bench: Deal with it now.
Goulston: Yes that’s right.
Bench: That’s probably a good idea. I’ll go off the Bench. Let me know as soon as you’re ready.
Short Adjournment
Prosecutor: Your Worship, there should now be a fresh charge of goods in custody under s 527C(1)(d) before you.
Bench: Yes, the defendant is acquainted with the fresh charge?
Goulston: Yes.
Bench: Plead guilty or not guilty.
```
Goulston: Your Worship, there may be a difficulty with entering a plea of guilty or not guilty and it’s my submission that this may be a situation where the plea is autrefois acquit and that the defendant can’t be required to enter a plea of guilty or not guilty to this fresh charge.
Bench: Why is, that, he hasn’t been tried on this particular matter.
Goulston: Well if your Worship’s dismissed the charge under s 527C(1)(a).
Bench: Well I haven’t, because that was withdrawn.
Goulston: Well, if it’s been withdrawn, well I would submit the prosecution can’t rely on fresh evidence. That would be a situation where it was the same before. There might be double jeopardy and it’s not open to the prosecution to call the same evidence regarding this new charge under (1)(d) and it’s my submission the prosecution can’t proceed twice using the same evidence. That would create a double jeopardy situation. That evidence has been heard. It was determined to the point where it was withdrawn. It can’t be heard again in my submission. That would be an abuse of process, so the plea to the fresh charge is autrefois acquit and it’s my submission that your Worship should dismiss the charge on that basis, that the plea is autrefois acquit or that the fresh charge is an abuse of process.
Bench: Well I don’t think, well autrefois acquit doesn’t apply because he hasn’t been acquitted. The charge was withdrawn. If there’s no further submissions this further matter will proceed. Does he plead guilty or not guilty?
Goulston: Well, your Worship, there’s also the submission that it’s an abuse of process, so your Worship should stay the prosecution.
Bench: You don’t have any further argument on that, just--
Goulston: Well just on the same grounds that I’ve already mentioned that the prosecution have proceeded under (1)(a) and that has now been withdrawn. The fresh charge has been laid and it would place the defendant in double jeopardy to have this new charge now heard and the prosecution proceeding twice on the same evidence. It would be my submission that it can’t be heard again and it’s an abuse of process for it to be heard again.
Bench: What do you say?
Prosecutor: Well, your Worship, I say to you that this matter being withdrawn, the case has not been heard on its merits. It’s a matter where your Worship has not made any determination at all and that being the case your Worship is effectively in a situation where you have not heard any evidence or that the original charge goes back to the beginning, where it’s been withdrawn. That being the case, it’s not an abuse of process and the prosecution should be allowed to call this further evidence.
Bench: Yes, look, the matter hasn’t been determined. It can’t possibly be double jeopardy on the course that this matter has followed. This matter must proceed as it stands under 527(1)(d).
Goulston: If your Worship rejects the submissions that I just made with respect to the plea of autrefois acquit or abuse of process, I’m instructed that it’s a plea of not guilty.”
22 Ms Goulston objected to the tender by the police prosecutor of the evidence already given, in order to establish a charge under s 527C(1)(d) and the police prosecutor thereupon applied for an adjournment, because all the prosecution witnesses had by that time left the court. That application for an adjournment was granted and there has been no further hearing of any substance in the Local Court.
23 In her affidavit Ms Goulston said that she had consented to the withdrawal of the information alleging an offence under s 527C(1)(a), because:
“I considered that if the information was to be withdrawn, it would then be dismissed. I considered that if the information was dismissed in this manner, the prosecution would not then be able to proceed with a further alternative charge under Section 527C(1)(d), because of the principle of double jeopardy or estoppel”.
24 The grounds filed by Mr Evans in support of his appeal can be summarised as follows:-
25 1. The magistrate erred in law in permitting the information alleging an offence under s 527C(1)(a) of the Crimes Act to be amended so as to allege an offence under s 527C(1)(d) of the Crimes Act.
26 2. The magistrate erred in law in giving leave to withdraw the information alleging an offence under s 527C(1)(a) of the Crimes Act and should, instead of giving leave to withdraw the information, have dismissed that information.
27 3. The magistrate erred in law in not permitting Mr Evans to enter a plea of autrefois acquit in the proceedings in which an offence under s 527C(1)(d) of the Crimes Act was alleged or in not permanently staying those proceedings on the grounds of double jeopardy or that those proceedings were an abuse of process.
28 It is convenient to deal with these grounds of appeal in turn.
1. Amendment of the information alleging an offence under s 527C(1)(a) of the Crimes Act so as to allege an offence under s 527C(1)(d) of the Crimes Act
29 I have stated this ground in the language used by the parties both in the Local Court and on the appeal. In the Local Court the magistrate and the parties, and on this appeal the parties, spoke of the information being “amended”. I note, however, that there is authority that, strictly speaking, s 65 of the Justices Act, which would be the only possible source of a power to amend the information, does not authorise a magistrate to amend an information but merely authorises a magistrate to disregard a defect or variance affecting the information.
30 During the course of the hearing in the Local Court it became apparent that the evidence of the prosecution would not support a conviction for an offence under s 527C(1)(a). A person cannot be convicted of an offence under s 527C(1)(a), where, at the time he is arrested, the person did not have custody of the property which is the subject of the charge. R v English (1989) 17 NSWLR 149. In the present case, the evidence of Constable Dietrich, Constable Dykes and Mr Banborough established that Mr Evans did not have custody of the bank notes at the time he was arrested and hence Mr Evans could not be convicted of an offence under s 527C(1)(a).
31 As I have already indicated, the source of any power the magistrate might have had to amend the information (or to disregard a variance between the information and the evidence) was s 65 of the Justices Act. It is well established, and was accepted by counsel for the Director of Public Prosecutions in this appeal, that s 65 of the Justices Act does not authorise a magistrate to convict a person of an offence, if that offence is a different offence from that charged in the information. See for example ex p. Lovell: re Buckley (1938) 38 SR (NSW) 153 at 173. An offence under s 527C(1)(a), an element of which is that the offender has the subject thing in his custody at the time he is arrested, is a different offence from an offence under s 527C(1)(d), an element of which is that the offender has given custody of the thing to another person who is not lawfully entitled to possession of the thing, and hence an information charging an offence under s 527C(1)(a) cannot validly be amended so as to charge an offence under s 527C(1)(d), or, expressed more accurately, a magistrate cannot disregard a variance between evidence which tends to establish an offence under s 527C(1)(d) and an information which charges an offence under s 527C(1)(a). Accordingly, the purported amendment or the purported disregarding of the variance was nugatory.
32 However, as has already been indicated, the magistrate, after having purported to amend the information, doubted his power to do so and “back tracked”, that is countermanded the purported amendment, so that, ultimately, no reliance was placed by the informant or the magistrate on the purported amendment.
33 The submission by counsel for the plaintiff that the magistrate erred in law in at first permitting the information to be amended so as to allege an offence under s 527C(1)(d) is made good but the plaintiff’s success on that ground is not sufficient to enable the plaintiff to succeed generally on this appeal.
2. Giving leave to withdraw the information alleging an offence under 527C(1)(a), instead of dismissing that information
34 The magistrate purported to give leave to the informant to withdraw the information alleging an offence under s 527C(1)(a). Ms Goulston, Mr Evans’ legal representative, consented to the withdrawal of the information.
35 In Lay v Cleary (unreported 23 February 1993), after consideration of a number of English and Australian cases, I held that a justice has an implied discretionary power to grant leave to an informant to withdraw an information charging an offence punishable summarily, at least where the informant applies for leave to withdraw the information before any hearing has commenced. I remain of that opinion.
36 In Lay v Cleary I stated the qualification introduced by the words “at least”, largely out of deference to a doubt expressed by Lowe J in the Victorian case of Bishop v Cody (1939) VLR 246, as to whether proceedings on an information for a summary offence can be withdrawn, after a hearing of the proceedings has commenced.
37 Since Lay v Cleary was decided Smith J of the Victorian Supreme Court has given his decision in Willis v Magistrates’ Court of Victoria (1996) 89 A Crim R 273.
38 In Willis two summary charges were brought against Willis, being a charge of unlawful assault and a charge of intentionally or recklessly causing injury. There was a hearing and the magistrate found Willis guilty of intentionally causing injury. The informant then sought leave to withdraw the charge of unlawful assault (a conviction having been obtained on the more serious charge) and the magistrate permitted the informant to withdraw the charge of unlawful assault. The court papers were marked “struck out W/D duplicitous”.
39 At p287 Smith J said:-40 Smith J then referred to various provisions in the Victorian Magistrates’ Court Act and concluded:-
“The power of an informant to withdraw an information, or the court to allow it, after the information has been heard has been a matter of some doubt as a result of comments made by Sir Charles Lowe in the case of Bishop v Cody (1939) VLR 246. His Honour’s doubts appear to have arisen from the fact that there was no express power contained in the then Justices Act 1928 (Vic) to withdraw an information and his Honour commented that the procedure laid down in that Act suggested that once the hearing was entered upon the court must go on to hear and determine the case and either convict or dismiss the information. His Honour’s comments on these matters was the subject of a commentary by W. Paul in ‘The Withdrawal of Informations for Offences’ (1940) 13 ALJ 444.”
“There do not appear to me to be any statutory limits imposed upon the prosecutor or upon the magistrate’s court in relation to the withdrawal of informations. Accordingly, the matters that concerned Sir Charles Lowe in Bishop v Cody need not concern us here. Rather, it would seem to me that permitting the withdrawal of the information was a matter for the exercise of inherent jurisdiction or implied power”.
41 It is to be noted that the approach adopted by Smith J was that a magistrate should be regarded as having an implied power to give leave to an informant to withdraw an information, even if a hearing of the information has been entered upon, unless that power is excluded or limited by legislation.
42 I have already held in Lay v Cleary that, at least before any hearing is commenced, a magistrate or justice has an implied discretionary power to grant leave to an informant to withdraw an information charging an offence punishable summarily. I made this holding, notwithstanding the provisions of s 77 of the Justices Act, which, when both parties appear, requires the justice to proceed to hear the case. In Lay v Cleary both parties had appeared.
43 It seems to me that, in terms of the existence of a power to give leave to an informant to withdraw an information, no distinction should be drawn between cases in which a hearing of the information has not commenced and cases in which a hearing has commenced. I do not consider that the provisions of s 80 of the Justices Act, which provides that after hearing the evidence and what each party has to say a justice is to consider and determine the matter and to either convict the defendant or dismiss the information, should be regarded as excluding an implied power in a magistrate to give leave to an informant to withdraw the information. Section 80 applies only after the evidence has been given and the magistrate has heard what the parties have to say.
44 I am fortified in the conclusion I have reached by the decision of Smith J in Willis, notwithstanding the somewhat different statutory provisions in New South Wales and Victoria.
45 Although the power to give leave to an informant to withdraw an information still exists, where a hearing of the information has commenced, a magistrate may be less likely to exercise the discretionary power in favour of the informant, if the hearing of the information has commenced. If the hearing has commenced and it has become apparent that the evidence of the prosecution is incapable of establishing the offence charged and if the defendant opposes the giving of leave to withdraw the information, then a proper exercise of the magistrate’s discretion may require the magistrate to refuse to give leave to the informant to withdraw the information. A defendant may oppose the giving of leave to withdraw the information, because the defendant wishes to obtain the benefit of an order of the magistrate dismissing the information, which would in turn empower the magistrate to make an order for costs in favour of the defendant.
46 In the present case, however, Mr Evans’ legal representative consented to the giving of leave to withdraw the information. That Mr Evans’ legal representative may have been mistaken about the legal consequences of a withdrawal of the information does not alter the fact that she consented. The legal representative of the defendant having consented to the withdrawal of the information, it was not an improper exercise of the magistrate’s discretion to give leave to the informant to withdraw the information.
47 In my opinion, the magistrate did not err in law in giving leave to the informant to withdraw the information alleging an offence under s 527C(1)(a) of the Crimes Act, instead of dismissing the information.
48 In any event, for reasons which will emerge later in this judgment, I do not consider that it really mattered whether the magistrate gave leave to withdraw the information or made an order dismissing the information.
49 Before dealing with the third ground relied on by Mr Evans, I should refer to a matter raised by counsel for the Director in her submissions. In making submissions about the change in the charge, during the course of the hearing on 16 May 2000, from a charge alleging an offence under s527C(1)(a) to a charge alleging an offence under s527C(1)(d), counsel for the Director referred to the decision of the Full Court in ex p. Williams; Re Singleton (1928) 28 S.R. (NSW) 616.
50 In ex p. Williams the applicant had been charged with an offence under s42(2) of the Gaming and Betting Act 1912. At the close of the case for the prosecution the applicant’s solicitor submitted that the evidence which had been adduced by the prosecution did not establish the charge under s42(2). The magistrate thereupon charged the applicant with an offence under s44 of the Gaming and Betting Act and the evidence already given was treated as evidence in support of this latter charge. At an adjourned hearing the magistrate refused to adjudicate on the charge under s42(2) and proceeded to convict the applicant of an offence under s44.
51 At pp618-619 Street CJ, with whose judgment the other members of the Court concurred, said:-
“The applicant is now applying for the issue of a writ of prohibition to restrain proceedings on the magistrate’s order, and two grounds are relied upon. The first is that the magistrate should have adjudicated upon the first charge before proceeding to try the applicant upon what is called the second charge. In my opinion, there is no substance in this objection. It proceeds upon the untenable assumption that there were two separate and distinct charges pending against the applicant at the same time, and that it was the duty of the magistrate to adjudicate on both. He could not, it is said, leave either undetermined. In my opinion, that is a wrong view of the situation. There were not two charges pending against the applicant at the same time. The magistrate, evidently being of opinion that the evidence was insufficient to establish the charge on which the applicant was brought before him, substituted for it another charge which he thought that the evidence given was sufficient to support, and at the same time informed the applicant of what that other charge was, so that he might have an opportunity of answering it. There was nothing wrong or improper in that. It is a permissible course under the Justices Act , 1902, and I am told that it is a practice which has been followed by magistrates for many years. Sect. 65 of the Justices Act provides that no objection shall be taken or allowed to any information or complaint in respect of any alleged defect in substance or in form, or of any variance between it and the evidence called in support of it at the hearing. Sect. 78 provides that where a defendant appears at the hearing the substance of the information or complaint shall be stated to him and he shall be asked if he has any cause to show, and s 80 provides that, after hearing what each party has to say, and the witnesses, and the evidence adduced, the justices shall consider and determine the whole matter. The justices cannot convict a man unless a legal offence is proved, and they cannot convict him of an offence with which he has not been charged, but if he is properly before them on an information which discloses no offence, or which charges an offence which is not supported by the evidence, he may be orally charged with any other offence which the evidence is sufficient to support, and, subject to being given a proper opportunity of meeting it, may be convicted of it. In The Queen v Hughes (4 Q.B.D. p614, Hawkins J, said (at p 626): ‘
‘A flood of authorities might be cited in support of the proposition that no process at all is necessary, when, the accused being bodily before the Justices, the charge is made in his presence, and he appears and answers to it’.
And in the same case Huddleston B. said (at p 633):
‘Principle and the authorities seem to show that objections and defects in the form of procuring the appearance of a party charged will be cured by appearance. The principle is that a party charged should have an opportunity of knowing the charge against him, and be fully heard, before being condemned. It he has the opportunity, the method by which he is brought before the justices cannot take away the jurisdiction to hear and determine, when he is before them’.
In Ex parte Glasheen (19 NSWLR 141) it was held by this Court that if a person appears before justices on an information for a certain offence, and he is then charged with a different offence within their jurisdiction, he has a good ground for asking for an adjournment, but if he waives that and answers the latter charge he may be convicted of it, notwithstanding that no information or summons has been previously issued in respect of it. In that case the information charged the applicant with wilfully causing horses, the property of the respondent, to trespass. The evidence showed that the alleged trespass was on the applicant’s own land. The justices convicted him, and a prohibition was granted upon the ground that the evidence did not support the charge. Sir Frederick Darley CJ, said (at p 145):
‘If, indeed, the justices had, during the hearing, seen the mistake that had been made in making this particular charge, and called upon Glasheen to plead to a charge of illegally impounding, and convicted him of that charge, this would have been within their power. They would of course have given Glasheen time, had he asked for it, to meet the then new charge’.
So also, in Ex parte Price (20 NSWLR 343) it was held by this Court that if a written information does not charge a legal offence, a conviction upon it is bad, but that it may be discarded, and the person charged, being then before the justices, may be orally charged with something that is a legal offence and may then be convicted of it”.
52 After referring to ex p. Williams, counsel for the Director referred to Toovey v Jones (unreported Supreme Court of New South Wales, Sully J, 7 October 1997); Bou-Simon v Attorney General (Commonwealth) (unreported Federal Court of Australia, Emmett J, 8 September 1998; Suters v Harrington (unreported Supreme Court of New South Wales, McInerney J, 9 August 1991).
53 In my opinion, some of what Street CJ said in ex p. Williams is not applicable in the present case and there is, in any event, no need for the Director to seek to rely on it. In the present case, unlike ex p. Williams, the magistrate did not substitute a charge under s527C(1)(d) for the original charge under s527C(1)(a), without an information having been laid alleging that Mr Evans had committed an offence under s527C(1)(d). What happened in the present case was that, after the magistrate had given the informant leave to withdraw the information alleging an offence under s527C(1)(a), the informant laid another information alleging an offence under s527C(1)(d). As Mr Evans was already before the court, there was no need for any summons or warrant to secure his attendance before the court. The issue of a summons or warrant is not essential to confer jurisdiction on a magistrate (ex p. Walker; Re Goodfellow (1944) 45 S.R (NSW) 103).
54 After the information alleging an offence under s527C(1)(d) had been laid, Mr Evans was informed of the nature of the charge and required to plead to it. After he had pleaded, an adjournment of the hearing of the charge under s527C(1)(d) was granted.
3. Not permitting Mr Evans to enter a plea of autrefois acquit in the proceedings in which an offence under s527C(1)(d) was alleged or not permanently staying those proceedings on the grounds of double jeopardy or that those proceedings were an abuse of process
55 In my opinion, any plea of autrefois acquit would necessarily have failed and the magistrate did not err in refusing to accept such a plea.
56 A plea of autrefois acquit lies only when there has been a previous judicial determination in favour of an accused person. See Rogers v The Queen (1994) 181 CLR 251 at 276-7 per Deane and Gaudron JJ. In the present case, there was no judicial determination by the magistrate that Mr Evans was not guilty of an offence under s527C(1)(a). The magistrate merely gave leave to the informant to withdraw the information alleging such an offence.
57 I infer that a realisation by Mr Evans’ legal advisers that a plea of autrefois acquit could not succeed, unless there was a judicial determination in favour of Mr Evans, underlay the contention by his legal advisers that the magistrate should have dismissed the information alleging an offence under s527C(1)(a), rather than giving leave to the informant to withdraw the information. If the magistrate had dismissed the information, then there would have been a judicial determination in favour of Mr Evans.
58 However, even if the information alleging an offence under s527C(1)(a) had been dismissed, nevertheless a plea of autrefois acquit could not have succeeded. A plea of autrefois acquit lies only “in cases in which the elements of the offences charged are identical or in which all the elements of one offence are wholly included in the other” (Pearce v The Queen (1998) 194 CLR 609 per McHugh, Hayne and Callinan JJ at pp616, 618, 620). It is not sufficient, in order for a plea of autrefois acquit to be available, that the different offences with which the defendant has been charged arise out of substantially the same set of facts.
59 In the present case, the criterion for a plea of autrefois acquit lying is not satisfied. The elements of the offences under s527C(1)(a) and s527C(1)(d) are not the same and it is not the case that all the elements of one offence are wholly included in the other.
60 As explained by McHugh, Hayne and Callinan JJ in their joint judgment in Pearce, the expression “double jeopardy” does not have a single meaning; that there should not be “double jeopardy” is “a value which underpins and affects much of the criminal law” (Pearce at p614), rather than itself being a principle of law which can be directly applied.
61 In R v Dodd and Anor (1991) 56 A Crim R 451 at p456 Gleeson CJ referred with approval to the “Blockburger Rule” in the United States, which, in relation to the constitutional guarantee in the United States against “double jeopardy”, “provides that successive prosecutions under two different statutory provisions do not constitute double jeopardy, if each statutory crime contains an element which the other does not”. By this test, which is similar to the test of whether a plea of autrefois acquit will lie, the two successive prosecutions of Mr Evans did not give rise to “double jeopardy”.
62 It was accepted by McHugh, Hayne and Callinan JJ in Pearce that there may be cases in which the repeated prosecution of an offender who cannot rely on a defence of autrefois acquit will nevertheless be an abuse of process.
63 In Walton v Gardiner (1992-3) 177 CLR 378 the High Court held that a court having supervisory jurisdiction has power to stay criminal proceedings as an abuse of process if it is satisfied that the continuation of the proceedings would involve unacceptable injustice or unfairness and that the grounds upon which a stay may be granted are not limited to cases where the proceedings have been brought for an improper purpose or where there is no possibility of the court hearing the proceedings affording the affected party a fair hearing.
64 In the present case, the proceedings alleging an offence under s527C(1)(d) were not brought for an improper purpose and it is not the case that there is no possibility of the Local Court affording Mr Evans a fair hearing. Nor am I satisfied that the continuation of the proceedings alleging an offence under s527C(1)(d) would involve unacceptable injustice and unfairness. Accordingly, I am not satisfied that the continuation of those proceedings would be an abuse of process.65 In my opinion, Mr Evans is not entitled to any of the orders sought by him and the summons to this Court should be dismissed. I make orders dismissing the summons and ordering that the plaintiff pay the defendant’s costs of the summons.
Conclusion
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