Morris v Hall
[2022] WASC 400
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: MORRIS -v- HALL [2022] WASC 400
CORAM: ARCHER J
HEARD: 8 NOVEMBER 2022
DELIVERED : 1 DECEMBER 2022
FILE NO/S: CIV 1577 of 2022
BETWEEN: JEREMY JAMES MORRIS
Applicant
AND
MAGISTRATE THOMAS RUSSELL HALL
First Respondent
TAYLOR WILLIAM ELLIS
Second Respondent
Catchwords:
Review of a magistrate's decision - Statutory construction - Section 25 of the Criminal Procedure Act - Discontinuance and dismissal of charge - Power of magistrate to consent to discontinuance - Abuse of process - Whether magistrate required to be positively satisfied it was not an abuse of process before the magistrate could consent to the discontinuance and dismiss the charge
Legislation:
Criminal Procedure Act 2004, s 25
Result:
Application dismissed
Category: B
Representation:
Counsel:
| Applicant | : | B Hanbury |
| First Respondent | : | No appearance |
| Second Respondent | : | K Dias |
Solicitors:
| Applicant | : | Hale Legal |
| First Respondent | : | State Solicitor's Office |
| Second Respondent | : | State Solicitor's Office |
Case(s) referred to in decision(s):
Ashwin v Housing Authority [2019] WASC 144
Australian Unity Property Ltd v City of Busselton [2018] WASCA 38
Bajaj v Magistrate Trevor Darge [2021] WASCA 218
Derley v R [2016] NSWCCA 60
Director of Public Prosecutions, South Australia v B [1998] HCA 45; (1998) 194 CLR 566
Hemmett v Market Direct Group [2018] WASC 214
Hossain v Minister for Immigration and Border Protection [2018] HCA 34; (2018) 264 CLR 123
Maxwell v R [1996] HCA 46; (1996) 184 CLR 501
Mohammadi v Bethune [2018] WASCA 98
PRS v Crime and Corruption Commission [2019] QSC 83
R v Lorkin (1995) 14 WAR 499
Rayney v AW [2009] WASCA 203
Re an Application under the Magistrates Court Act 2004; Ex parte Bartholomew [2008] WASC 52
Re Magistrate D Temby; Ex Parte Stanton [2015] WASC 357
Re Magistrate G Benn; Ex parte Gething [2019] WASC 380
Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82
Salmat Document Management Solutions Pty Ltd v R [2006] WASC 65
Snook v Roberts [2022] WASC 196
Strahan v Brennan [2014] WASC 190
ARCHER J:
Introduction
The applicant, Mr Morris, was charged with one count of unlawful assault causing bodily harm in circumstances of aggravation, contrary to s 317(1) of the Criminal Code 1913 (WA) (Charge). The matter was listed for trial in the Magistrates Court on 27 April 2022.
On 18 April 2022, the prosecutor emailed defence counsel, stating that 'the matter will be discontinued.'[1]
[1] Affidavit of Jeremy James Morrison sworn on 15 July 2022, JJM8.
When the matter was called in the Magistrates Court on 27 April 2022, the prosecutor informed the learned magistrate that the Charge was to be discontinued, pursuant to s 25 of the Criminal Procedure Act 2004 (WA). Under that section, if no evidence has been adduced in relation to a charge, the prosecutor may inform the Magistrates Court that the prosecutor is discontinuing the prosecution of the charge. On being so informed, the court may consent or, if satisfied that the discontinuance would be an abuse of process, refuse to consent to the discontinuance of the prosecution concerned. If a prosecution is discontinued, the court must dismiss the charge for want of prosecution. A dismissal of a charge under s 25 does not operate as an acquittal.
Defence counsel submitted that the magistrate should not dismiss the Charge. He sought that the accused instead be acquitted.
After hearing from both parties, the magistrate indicated that he was not satisfied that it would be an abuse of process to discontinue the prosecution, and dismissed the Charge (Decision).
Mr Morris seeks a review of the Decision under s 36 of the Magistrates Court Act 2004 (WA) (Review Application).
The Review Application
The Review Application alleges that the learned Magistrate fell into jurisdictional error in ordering that the Charge be dismissed on the following grounds:
1.The power of the learned Magistrate to order the dismissal was conditional upon the learned Magistrate being satisfied that the application was not an abuse of process and there was no basis upon which that conclusion could be reached; and
2.the learned Magistrate was not "informed" of proper reasons for the application.
Legal Framework
Review Orders[2]
[2] The following summary of legal principles draws on my decision in Re Magistrate G Benn; Ex parte Gething [2019] WASC 380.
Section 36 of the Magistrates Court Act 2004 (WA) is a statutory judicial review power.[3] Section 36(1) provides:
[3] Rayney v AW [2009] WASCA 203 [27] (McLure JA, as her Honour then was).
(1)If a person is or would be aggrieved by one or more of the following ‑
(a)the failure of a Court officer to do any act or make any order or direction ‑
(i)on the ground that the officer is under a duty to do the act or make the order or direction; or
(ii)on any ground that might have justified an order of mandamus;
(b)an act, order or direction that a Court officer proposes to do or make -
(i)on the ground that it would be without jurisdiction or power or would be an abuse of process; or
(ii)on any ground that might have justified an order of prohibition;
(c)an act, order or direction done or made by a Court officer -
(i)on the ground that it was done or made without jurisdiction or power or is an abuse of process; or
(ii)on any ground that might have justified an order of certiorari,
the person may apply to the Supreme Court for an order (a review order) that requires the Court officer and any person who will be affected by the act, order or direction to satisfy the Supreme Court at a hearing that the act, order or direction should or should not be done or made or set aside, as the case requires.
A review order can only be made if the applicant establishes an arguable case that an error of the type identified in s 36(1)(a), (b) or (c) was made. To fall within s 36(1), the error must be either a jurisdictional error,[4] or it must be an error of law on the face of the record.[5]
[4] As to which see Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82 [163] (Hayne J), Hossain v Minister for Immigration and Border Protection [2018] HCA 34; (2018) 264 CLR 123 and Bajaj v Magistrate Trevor Darge [2021] WASCA 218 [50] - [54].
[5] Re Magistrate D Temby; Ex Parte Stanton [2015] WASC 357; see also Rayney [27] ‑ [34] (McLure JA, as her Honour then was) and Ashwin v Housing Authority [2019] WASC 144 [3] - [9].
The procedure for making, and in relation to, an application under s 36(1) is set out in O 56A of the Rules of the Supreme Court 1971 (WA).
If a review order is made, and if at the hearing of the review order the Supreme Court is not satisfied in accordance with the review order, or if it is just to do so, the Court may:[6]
(a)order that the act, order or direction be or not be done or made or set aside, as the case requires;
(b)grant any relief or remedy that could have been granted by way of a writ of mandamus, prohibition or certiorari;
(c)make any necessary consequential orders.
[6] Magistrates Court Act s 36(4).
The application for a review order and the hearing of any review order made (and for relief) may be heard together.[7] That is what occurred in this case.
Discontinuing a charge and abuse of process
[7] Hemmett v Market Direct Group [2018] WASC 214 [38].
Prior to the enactment of the Criminal Procedure Act, prosecutions in superior courts could be discontinued by the prosecution informing the court that the prosecution 'will not further proceed upon' the charge.[8] The prosecutor would 'inform' the court of this by tendering a notice of discontinuance referred to as a 'nolle prosequi'. If a subsequent indictment alleging the same offence was presented, the court had the power to stay the prosecution if it considered the presentation of the same charge to be an abuse of process.[9]
[8] See the now repealed s 581 of the Criminal Code.
[9] R v Lorkin (1995) 14 WAR 499, 519 (Malcolm CJ, with whom Kennedy J agreed). See also Derley v R [2016] NSWCCA 60 [54].
The court also had the power to refuse to accept a nolle prosequi from a prosecutor at the time the prosecutor tendered it to the court where the provision of the nolle prosequi would amount to an abuse of process. It was accepted that the tender of a nolle prosequi would only amount to an abuse in exceptional circumstances. Such exceptional circumstances were found to exist in a case where the prosecution sought to discontinue a charge after the trial judge refused an application by the prosecutor to adjourn the trial. The tender of the nolle prosequi in those circumstances appeared to be designed to defeat the trial judge's ruling.[10]
[10] Lorkin, 519 (Malcolm CJ, with whom Kennedy J agreed) and 522 (Kennedy J). And see Director of Public Prosecutions, South Australia v B [1998] HCA 45; (1998) 194 CLR 566 [22] (Gaudron, Gummow and Hayne JJ) as to the need for the trial to have 'begun' before this power could arise. At the time Lorkin was decided, an indictable trial in Western Australia was deemed to begin when the accused was called to plead to the indictment - see the now repealed s 612 of the Criminal Code.
Prior to the enactment of the Criminal Procedure Act, magistrates did not have similar powers.
Criminal Procedure Act
The Criminal Procedure Act makes provision for the discontinuance of charges where no evidence is adduced. Section 25 and s 79 apply to prosecutions in courts of summary jurisdiction.
Section 25 of the Criminal Procedure Act provides:
25.Discontinuing prosecution
(1)If no evidence has been adduced in relation to a charge, the prosecutor may inform the court that the prosecutor is discontinuing the prosecution of the charge.
(2)On being so informed, the court may consent or, if satisfied that the discontinuance would be an abuse of process, refuse to consent to the discontinuance of the prosecution concerned.
(3)If a prosecution of a charge is discontinued, the court must dismiss the charge for want of prosecution.
Section 79 of the Criminal Procedure Act provides:
79.Dismissing charge for want of prosecution, consequences of
(1)A court that dismisses a charge for want of prosecution -
(a)must not determine the charge; and
(b)may discharge the accused from the charge.
(2)The dismissal of a charge for want of prosecution does not operate as an acquittal of the accused of the charge.
(3)The dismissal of an indictable charge for want of prosecution does not affect the operation of Part 4 Division 2.
If an indictable charge is dismissed in the Magistrates Court under s 25, and later an indictment containing the same charge is presented in a superior court, the superior court has the power to permanently stay the prosecution if it is in the interests of justice to do so.[11]
[11] Criminal Procedure Act s 90.
If a charge is dismissed under s 25, and later the same charge is presented in the Magistrates Court, the Magistrates Court has the power to permanently stay the prosecution, if it is satisfied that the charge is an abuse of the process of the court.[12]
Approach to statutory construction
[12] Criminal Procedure Act s 76.
In construing legislation, primacy must be given to the legislative text. The meaning of the legislation must emerge from the statutory text, understood in its context and having regard to the statutory purpose being pursued.[13]
Construing a magistrate's reasons
[13] Australian Unity Property Ltd v City of Busselton [2018] WASCA 38 [77] ‑ [85]. See also Mohammadi v Bethune [2018] WASCA 98 [31]. See also [32] ‑ [36].
When considering a magistrate's reasons, it is necessary to keep in mind the nature of the work of magistrates. As was pointed out by Martin CJ in Strahan v Brennan,[14] magistrates are required to conduct cases efficiently and with a degree of informality given the large volume of cases they hear each day. Accordingly:[15]
[I]t is not appropriate to scrutinise the reasons for decision given by magistrates with a fine-tooth comb or with an eye keenly attuned to the identification of error. Nor is it appropriate for the court to infer from infelicity of language that error is thereby demonstrated. That is because, of necessity, magistrates are required to perform their important functions in a different time frame to that which applies in the superior courts and in that context it is to be expected that some infelicity of language is likely to occur from time to time.
[14] Strahan v Brennan [2014] WASC 190 [89] ‑ [90].
[15] Strahan v Brennan [90].
The Magistrates Court hearing
After announcing his appearance, the prosecutor informed the learned magistrate that the Charge was to be discontinued, pursuant to s 25 of the Criminal Procedure Act.[16]
[16] Transcript of Magistrates Court hearing on 27 April 2022 (Magistrates Court Transcript) page 2.
The prosecutor advised the Magistrates Court that the discontinuance was sought because[17]
a view has been taken, at the present time, that the charge is not in the public interest, but those matters are being - which may alter, the reason being the current welfare of the main complainant in the - or the complainant in the matter is poor, and for that reason it has been determined that the matter should not proceed at present.
So the prosecution just wishes to leave open - although perhaps unlikely, leave open the possibility that, in future, the matter may - should the condition of the complainant improve, may come back on before the court. Of course, any question in relation to bail (indistinct) the accused will no longer be on bail and will be free to get on with his life if the matter were simply discontinued.
[17] Magistrates Court Transcript page 3.
The magistrate read out the substantive part of s 25(2). The prosecutor noted that an example of an abuse of process would be where the prosecution was simply attempting to get an adjournment.[18]
[18] Magistrates Court Transcript page 3.
Defence counsel said:[19]
We say, your Honour, that that's, to some degree, in effect, what the prosecution is trying to do. If it was the case that every time a complainant wasn't feeling well enough to come to court - and I know in this matter we don't have any medical evidence to support that, that has been provided to us - that the prosecution could just discontinue prosecutions and then re-charge at a later point all the time.
And so then you're left with this situation where accused persons cannot have closure, and especially in a situation like this, where you've got a fellow criminal practitioner. Clearly, an offence of this nature, being on bail has a significant impact on their wellbeing, and we say that in circumstances ‑ ‑ ‑
[19] Magistrates Court Transcript page 3.
At this point, the magistrate pointed out that the accused would no longer be on bail if the Charge was discontinued.[20]
[20] Magistrates Court Transcript page 4.
Defence counsel continued:[21]
‑ ‑ ‑ and also having it hanging over his head that the police will come knocking at some stage - say, "Look, the complainant is feeling better. We're going to proceed with the charge." We say that that would be an abuse of process, to allow a discontinuance in these circumstances.
[21] Magistrates Court Transcript page 4.
The magistrate said:[22]
Yes. Look, I don't think it's an abuse of process, at this point, based on the evidence before me. I mean, I think, from my experience, it's unlikely that it's ever going to be re-charged. It very rarely happens, but on the evidence presented before me about the reasons for the dismissal, I don't - I'm not satisfied it's an abuse of process. So I'm prepared to dismiss the charge.
I mean, there are examples whereby it's the second trial date, third trial date, you know, and the prosecution are seeking an adjournment, and in those cases it's an abuse of process, but this is the first trial date. Prosecution have given me a reason as to why it's being discontinued. I don't think that's an abuse of process, that reason. I appreciate the accused wants finality.
…
But in most aspects, this is finality.
[22] Magistrates Court Transcript page 4.
Defence counsel asked for a moment and then said he would not 'take the matter any further'.[23] He sought costs, and costs were granted in the sum of $10,872.70.[24]
[23] Magistrates Court Transcript page 4.
[24] Magistrates Court Transcript pages 4 - 12.
At no time during the hearing did defence counsel seek to adduce evidence or seek an adjournment so that evidence could be obtained.
Ground 1
Ground 1 alleges that the power of the learned Magistrate to order the dismissal was conditional upon the learned Magistrate being satisfied that the 'application' was not an abuse of process, and alleges that there was no basis upon which that conclusion could be reached.
Section 25 of the Criminal Procedure Act does not expressly require the prosecutor to make an 'application'. It simply refers to the prosecutor informing the court that the prosecutor is discontinuing the prosecution of the charge.
The applicant submits that 'the decision to find that the application for discontinuance was not an abuse of process was a condition precedent to the discontinuance and therefore certiorari is enlivened'.[25] I take this to mean that the applicant submits that it is a condition precedent to a magistrate's power to consent to a discontinuance that the magistrate be satisfied that the discontinuance would not be an abuse of process.
[25] Applicant's Outline of Submissions filed 21 July 2022 (Applicant's Submissions) [25].
The applicant submits that there was no basis upon which the magistrate could have been satisfied that the discontinuance would not be an abuse of process because no evidence was adduced in support of the prosecutor's oral statements.[26] The applicant submits that the magistrate took into account extraneous matters of speculation and personal experience.[27] The applicant criticises the magistrate for referring to what he had been told by prosecuting counsel as 'evidence'[28] and for referring to his own experience of the likelihood that the applicant would be recharged.[29] Indeed, the applicant submits that, by referring to what he had been told by prosecuting counsel as 'evidence', the magistrate mistakenly believed that evidence had been adduced. The applicant submits that it was not simply infelicity of language.[30]
[26] ts 11.
[27] Applicant's Submissions [31].
[28] Applicant's Submissions [10] and [13] - [16].
[29] Applicant's Submissions [18].
[30] ts 9 - 10.
The applicant submits, in effect, that there was no evidence upon which the magistrate could have achieved the necessary state of satisfaction and he thereby committed a jurisdictional error in making the Decision.[31]
[31] See the Applicant's Submissions [31] - [37] and [40] and ts 11 and 13.
The applicant's contentions in relation to ground 1 proceed upon the premise that the magistrate could only dismiss the Charge if he was positively satisfied that the discontinuance would not be an abuse of process. I will explain, in what follows, why this premise is false. This makes it unnecessary to comment on the applicant's criticisms of the magistrate's statements. Nevertheless, I observe that it would be astonishing if a magistrate did not know that statements from the bar table were not evidence. In my view, the magistrate's reference to 'evidence' was plainly a slip of the tongue.
The pre-conditions in s 25
Section 25 requires a charge to be dismissed for want of prosecution if the charge is discontinued. Section 25 gives the Magistrates Court the power to consent to a charge being discontinued if two pre-conditions are met:
1.no evidence has been adduced in relation to a charge; and
2.the prosecutor informs the court that the prosecutor is discontinuing the prosecution of the charge.
By the terms of s 25, if those pre-conditions are met, the court may consent to the discontinuance or, if satisfied that the discontinuance would be an abuse of process, refuse to consent.
That is, if the two pre-conditions are met:
1.the court may consent to the discontinuance; or
2.if the court is satisfied that the discontinuance would be an abuse of process, the court may refuse to consent.
The word 'may' - a power not a discretion
Generally, the word 'may' implies that the power conferred is discretionary.[32] However, the intent and object of the Act, or something in the subject or context of the Act, may be inconsistent with such an interpretation.[33]
[32] Interpretation Act 1984 (WA) s 56.
[33] Interpretation Act 1984 (WA) s 3(1).
By the plain words in s 25, Parliament intended that magistrates would have the power to dismiss a prosecution unless it would be an abuse of process to do so. The express pre-conditions to the power arising are factual - that no evidence has been led and that the prosecutor has informed the court that the prosecutor is discontinuing the prosecution. By s 79 of the Criminal Procedure Act, such a dismissal does not operate as an acquittal of the accused of the charge, and a discontinued charge may be recommenced.[34]
[34] Re an Application under the Magistrates Court Act 2004; Ex parte Bartholomew [2008] WASC 52 [11].
Further, s 25 simply requires a prosecutor to inform the court that the charge is being discontinued. It does not require the prosecutor to make an application to have the charge discontinued.
Having regard to these matters, I consider that the use of the word 'may' in s 25 does not confer a general discretion, but rather confers a power which must be exercised if the two pre-conditions are met, unless the court is satisfied that a discontinuance would be an abuse of process.
Burden of proof in relation to abuse of process
By the plain words in s 25, the power to refuse to consent to a discontinuance is expressly conditioned on the court being satisfied that the discontinuance would be an abuse of process. It is a jurisdictional fact to the power to refuse.[35] By the plain words of s 25, the court does not have the power to refuse to consent to a discontinuance unless the court is satisfied that the discontinuance would be an abuse of process.
[35] See Aronson M, Groves M and Weeks G, Judicial Review of Administrative Action and Government Liability (7th ed, 2021) [5.500] and Snook v Roberts [2022] WASC 196 [38].
There is nothing in the broader context of the Criminal Procedure Act or the legislative purpose to suggest that the words do not mean what they say.
If the court is not satisfied that the discontinuance would be an abuse of process, the court must consent to the discontinuance and dismiss the charge. No evidence is required. A magistrate need not be positively satisfied that it would not be an abuse. The magistrate need only not be positively satisfied that it would be an abuse.
Therefore, there is no legal or evidential burden on the prosecution to prove that the discontinuance would not be an abuse.[36]
Conclusion on ground 1
[36] And see Salmat Document Management Solutions Pty Ltd v R [2006] WASC 65 [37] in the context of an application under s 90 of the Criminal Procedure Act. McKechnie J noted that the evidential burden was on an applicant seeking the exercise of the power to stay a prosecution 'because in the normal course an indictment will proceed to trial'.
The plain meaning of s 25 is that it is not a condition precedent (or a jurisdictional fact) to a magistrate's power to consent to a discontinuance that the magistrate be satisfied that the discontinuance would not be an abuse of process.
The applicant does not contend that it was not open to the magistrate to not be satisfied that the discontinuance would be an abuse of process. He simply contends, in effect, that the magistrate ought not have been satisfied that it would not be.
The magistrate did not purport to make that finding. The magistrate simply found that he was not satisfied that it was an abuse of process. Clearly, the magistrate correctly understood the nature of the power.
I would therefore not make a review order based on ground 1. It is based on a false premise and does not give rise to an arguable case of jurisdictional error.
Ground 2
As noted earlier, a condition precedent to a magistrate's power to consent to a discontinuance is that the magistrate be 'informed' that the prosecutor is discontinuing the prosecution. Ground 2 alleges that the learned Magistrate was not 'informed' of 'proper' reasons for the discontinuance. Although the applicant appeared to withdraw this ground during the hearing of the Review Application, it was not entirely clear that this was his intention.[37] Accordingly, I will deal with it briefly.
[37] ts 12 - 13.
The applicant submits:[38]
It is implicit in s.25(1) that to 'inform' the Court would mean, not simply to tell the Court of the fact of discontinuance, but to disclose the proper reasons underpinning the decision.
The phrase 'On being so informed' in s.25(2) implies that the reasons for the discontinuance can be sought. If reasons were not to be given after request, either by the presiding judicial officer or the defence then, it is submitted, the Court would not be 'informed'.
[38] Applicant's Submissions [5] - [6].
The applicant submits that the magistrate had no jurisdiction to consent to the discontinuance because he had not been 'informed'.[39]
[39] Applicant's Submissions [26].
The term 'inform' is not defined in the Criminal Procedure Act. Its ordinary meaning according to the Macquarie Dictionary is, relevantly, 'to impart knowledge of a fact or circumstance to: [for example] I informed her of my arrival.'[40]
[40] Macquarie Dictionary (Online) definition of 'inform'. The applicant conceded this was the ordinary meaning - see ts 13.
The word 'inform' appears in numerous other sections of the Criminal Procedure Act. Consistently with the ordinary meaning of the word, it appears to be used to indicate something being stated, rather than something being explained.[41] Further, the word 'explain' or a cognate expression is used in some provisions of the Criminal Procedure Act.[42]
[41] See Criminal Procedure Act s 9(1)(f) - (g), s 13(1)(b), s 33(2), s 103, s 106, s 142 and sch 1 div 2 cl 5. Its use in s 118(3) is affected by the context in which it is used - 'the court may inform itself in any way it thinks fit'.
[42] See Criminal Procedure Act s 33(2)(c)(i), s 51(5)(e)(ii), s 53(1)(b) and s 137(3)(b)(ii). See also the use of the word 'explaining' in s 12(2) and s 39(c).
The express pre-conditions to the power to consent to a discontinuance are that no evidence has been led and that the prosecutor has informed the court that the prosecutor is discontinuing the prosecution. In this context, the pre-conditions are purely factual. There is no reason to construe the word 'inform' as requiring more than the factual statement that the prosecutor is discontinuing the prosecution.
The court has the power to refuse to consent to a discontinuance if it is satisfied it would be an abuse. For that reason, the court would have the power to inquire as to the circumstances of the discontinuance. However, an explanation of the reasons for the discontinuance is not a pre-condition to the power to consent to a discontinuance (nor to the power to refuse if satisfied it would be an abuse).
In any event, in this case, the magistrate was informed of the reasons for the discontinuance.[43]
'Proper' reasons?
[43] See under the heading 'The Magistrates Court hearing'.
The applicant appeared to also contend by ground 2 that the prosecutor needed to have 'proper' reasons for the discontinuance. To the extent that this sought to challenge the prosecutor's conduct,[44] this is beyond the scope of a review order. Review orders are directed to the conduct of court officers, not prosecutors.[45]
[44] See the Applicant's Submissions [2] - [5].
[45] See the definition of 'court officers' in s 3 of the Magistrates Court Act and s 36. See also Maxwell v R [1996] HCA 46; (1996) 184 CLR 501, 534 and PRS v Crime and Corruption Commission [2019] QSC 83 [60].
The only relevance of the nature of the reasons is to the magistrate's assessment of whether it would be an abuse to consent to the discontinuance. If the nature of the reasons causes the magistrate to conclude that a discontinuance would be an abuse of process, the magistrate could refuse to consent.
'Proper' manner?
Elsewhere, the applicant used 'proper' in the context of a submission that the magistrate had to be informed in 'the proper manner'.[46] This appeared to be an assertion that the magistrate would not be 'informed' unless the reasons for the discontinuance were proved by evidence.[47] There is no reason to read s 25 of the Criminal Procedure Act in that way. Even if the word 'inform' requires the prosecutor to give reasons for the proposed discontinuance,[48] there is no justification to construe it as also requiring that evidence be adduced to prove those reasons.
[46] See the Applicant's Submissions [38] - [40].
[47] See the Applicant's Submissions [15] - [16].
[48] As to which, see Lorkin, 514 (Malcolm CJ, with whom Kennedy J agreed).
I would therefore not make a review order based on ground 2. It does not give rise to an arguable case of jurisdictional error.
Failed to determine
Although not a ground of review, the applicant further contended that the magistrate had not determined the 'the question before him'.[49] The applicant cited Re an Application under the Magistrates Court Act 2004; ex parte Bartholomew[50] in support of this contention.
[49] Applicant's Submissions [29].
[50] Bartholomew [49].
In Bartholomew, Murray J was dealing with a review application in relation to a magistrate's decision to refuse to order discovery in criminal proceedings. The magistrate had refused to order discovery, saying:[51]
I am not satisfied on the basis of the submissions that have been put to me that it is necessary to order disclosure at this point in time. The fact that I have refused disclosure now does not preclude the defendant from making an application for disclosure in the future.
[51] Bartholomew [10].
Murray J said:[52]
…there is a clear indication, in my opinion, that her Honour did not, in truth, exercise the discretion reposed in her by s 60(5) of the Criminal Procedure Act. Her remarks at the time reveal that she did not weigh the considerations which bore on the question posed to her. She expressed the view that disclosure was not necessary at that time, and observed that an application could be made later. What might then be different, which might lead her Honour to a more favourable consideration of an application for disclosure, does not emerge.
…
…The magistrate was under a duty to hear the application for the disclosure order, to properly consider and weigh the considerations relevant to the discretionary judgment to grant or refuse the order and to make that decision … she did fail to properly embark upon and determine the application before her. She merely said that she was not satisfied that it was necessary to order disclosure at that point in time, when the question whether the application was made prematurely was not raised or debated before her
[52] Bartholomew [44] and [49].
Even putting aside that s 25 of the Criminal Procedure Act does not require any 'application' by the prosecutor, the same criticisms cannot be made here. The relevant parts of the transcript of the hearing before the magistrate were extracted earlier.[53] They show that his Honour considered the terms of s 25 and considered and weighed the relevant considerations. In particular, and in the context of the submissions put to him, he weighed the prosecutor's reason for discontinuing (being the current health of the complainant, which could improve), the fact that it was the first trial date, and the accused's desire for finality. He was not satisfied that a discontinuance would be an abuse.[54] The magistrate had also previously explained why the burden of bail was not a relevant consideration, as the accused would no longer be on bail once the Charge was discontinued.
[53] See under the heading 'The Magistrates Court hearing'.
[54] Magistrates Court Transcript pages 6 - 7.
Conclusion
For these reasons, I dismiss the Review Application.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
KH
Associate to the Honourable Justice Archer
30 NOVEMBER 2022
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