O’Neill v Rankine and Westphal v Foster - [2015] NTSC 24

O’Neill v Rankine and Westphal v Foster [2015] NTSC 24
PARTIES:O’NEILL, Wayne

v
RANKINE, Quintin
And:
WESTPHAL, Lindsay
v
FOSTER, Barry Sydney Milton

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION:  SUPREME COURT OF THE NORTHERN TERRITORY EXERCISING APPELLATE JURISDICTION
FILE NOS:21400638 and 21350203
DELIVERED:  27 April 2015
HEARING DATES:  10, 17 & 24 June 2014
JUDGMENT OF:  BARR J
APPEAL FROM:  COURT OF SUMMARY JURISDICTION
CATCHWORDS:

JUSTICES APPEAL – Criminal law – practice and procedure – prosecution appeal against dismissal of charges on complaint prior to hearing on merits – procedural non-compliance – magistrate dismissed charges for ‘want of proper prosecution’ – appellant contends magistrate lacked power and erred in purporting to dismiss charges – no express power to dismiss for procedural non-compliance – held that magistrate constituting Court of Summary Jurisdiction has implied power to dismiss charges on complaint prior to hearing – power implied for effective exercise of pre-trial jurisdiction expressly conferred and to ensure fair hearing – appeal dismissed – appeal also ruled incompetent – Justices Act excludes appeal from an order dismissing a charge on complaint.
JUSTICES APPEAL – Criminal law – practice and procedure – indictable offences – prosecution appeal against dismissal of charges on information prior to hearing on merits – respondents each charged on information with one count of aggravated assault – procedural non-compliance – magistrate dismissed charges for ‘want of proper prosecution’ – appellant contends magistrate lacked power and erred in purporting to dismiss charges – held that magistrate lacked jurisdiction – no power to dismiss charges on information at pre-trial stage – however appeals not competent – purported dismissal orders not final adjudication or determination of substantive rights – appeals dismissed.
Criminal Code, s 3, s188 (1) & (2)
Interpretation Act, s 38E
Justices Act, s 4, s 41A, s 43(1)(a), s 44(e) & (f), s 49(a), s 63, s 63A(1A) & (7)(b), s 67, s 68(1), (2)& (3), s 69, s 71(2), s 106A(2)(a) & (2)(b), s 131A(1) & (2), s163(1), s 182, s 201A(1)(a) & (4).
Justices of the Peace Act, s 6(1)
Magistrates Act, s 24.
Practice Direction issued 4 October 2010, “Court of Summary Jurisdiction Procedure for the Listing of Summary Offences Hearings”.
Birkeland-Corro v Tudor-Stack [2005] NTSC 23; Grassby v The Queen (1989) 168 CLR 1, followed.
Graham v Atkins [2006] NTSC 51; Noel HaroldJago v The District Court of New South Wales and Ors (1989) 168 CLR 23, applied.
Consolidated Press Holdings v Wheeler (1992) 84 NTR 42, considered.
Barton v The Queen (1980) 147 CLR 75; Breedon v The Queen (1995) 124 FLR 328, Bynder v Gokel (1998) 8 NTLR 91; Director of Public Prosecutions v Shirvanian and Anor (1998) 44 NSWLR 129; George Elias v The Queen (2013) 248 CLR 483; Ellis v Balchin [2009] NTSC 17; Gaffee v Johnson (1996) 90 A Crim R 157; Jackson v Sterling Industries Ltd (1987) 162 CLR 612; Macey v Cooper (1999) 150 FLR 476; Maxwell v The Queen (1996) 184 CLR 501; Megson v The Queen [2006] NTSC 15; Potter and Potter v Liddy (1984) 14 A Crim R 204; R v Ulman-Naruniec [2003] SASC 437; 143 A Crim R 531; Step v Atkins [2008] NTCA 5; Tcherna v Garner (1999) 154 FLR 243; Ward v Hodgkins [1957] VR 715; Wills v Trenerry [1999] NTSC 2, referred to.
The Queen v O’Loughlin; Ex parte Ralphs (1971) 1 SASR 219, distinguished.
REPRESENTATION:
Counsel:
Appellant:T C Jackson
Respondent:  G Betts
Solicitors:
Appellant:Office of the Director of Public Prosecutions
Respondent:  Central Australian Aboriginal Legal Aid Service
Judgment category classification:   B
Judgment ID Number:  Bar1507
Number of pages:  17

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
O’Neill v Rankine and Westphal v Foster [2015] NTSC 24

Nos. 21400638 and 21350203
BETWEEN:

WAYNE O’NEILL

Appellant

AND:

QUINTIN RANKINE

Respondent

AND:

LINDSAY WESTPHAL
Appellant

AND:

BARRY SYDNEY MILTON FOSTER
Respondent

CORAM: BARR J
REASONS FOR JUDGMENT
(Delivered 27 April 2015)

These two appeals raise an issue as to the jurisdiction of a magistrate under the Justices Act to dismiss a complaint or information prior to any hearing on the merits.
On 6 January 2014 Sergeant O’Neill, the first appellant, charged Quintin Rankine, the first respondent, with the following four charges on complaint:
1.That on 3 January 2014 at Tennant Creek, Quintin Rankine engaged in conduct that resulted in a breach of a condition of a grant of bail, contrary to s 37B of the Bail Act.
2.That on 4 January 2014 at Tennant Creek, Quintin Rankine engaged in conduct that resulted in a condition of grant of bail, contrary to s 37B of the Bail Act.
3.That on 4 January 2014 at Tennant Creek, Quintin Rankine, being a person subject to an alcohol protection order, intentionally engaged in conduct resulting in the contravention of the alcohol protection order, contrary to s 23(1) of the Alcohol Protection Orders Act.
4.That on 4 January 2014 at Tennant Creek, Quintin Rankine, being a person against whom a Domestic Violence Order was in force, engaged in conduct that resulted in the contravention of the Order contrary to s 120(1) of the Domestic and Family Violence Act.
Sergeant O’Neill also charged Quintin Rankine on information as follows:
That on 4 January 2014 at Tennant Creek, Quintin Rankine unlawfully assaulted Natasha Lennon, contrary to s 188(1) of the Criminal Code
AND THAT the said unlawful assault involved the following circumstances of aggravation, namely:
(i)That the said Natasha Lennon suffered harm
(ii)That the said Natasha Lennon was a female and Quintin Rankine was a male
(iii)That the said Natasha Lennon was threatened with an offensive weapon, namely a wooden block
Contrary to s 188(2) of the Criminal Code.
On 13 November 2013, Senior Constable Westphal, the second appellant, charged Barry Foster, the second respondent, with the following charge on information:
That on 21 August 2013 at Alice Springs Barry Sydney Milton Foster unlawfully assaulted William Cannan, contrary to s 188(1) of the Criminal Code
AND THAT the said unlawful assault involved the following circumstance of aggravation, namely:
(i)That the said William Cannan suffered harm
Contrary to s 188(2) of the Criminal Code.
Procedural history
The charges against Mr Rankine were mentioned in the Court of Summary Jurisdiction at Alice Springs on 6 January 2014, at which time pleas of not guilty were indicated and the case listed for contest mention[1] on 13 February 2014. The magistrate made orders as to the service of the prosecution brief of evidence by 30 January 2014.
On 13 February 2014 the charges were again mentioned in the Court of Summary Jurisdiction. It was noted that the orders made 6 January 2014 had not been complied with. The case was adjourned to 27 February 2014 for further mention. The magistrate ordered that the brief of evidence be served on the defendant by 21 February 2014.
On 27 February 2014 the charges once more came before the Court of Summary Jurisdiction. The full brief of evidence had still not been served. The transcript indicates that only two statements had been served. The learned magistrate dismissed the charges “for want of proper prosecution” because of the prosecution’s failure to provide written statements as previously ordered.[2]
The procedural history in the Foster matter was similar. The case was mentioned on 7 January and adjourned to 13 February 2014 for a contest mention. An order was made that statements of prosecution witnesses be served by 7 February. The statements were served, but not until the morning of the contest mention on 13 February. On 13 February, the magistrate adjourned the case to 27 February for further contest mention. His Honour directed that the defendant had to be given a copy of CCTV footage in the possession of the police and a reasonable opportunity to view it before 20 February.
On 27 February 2014 the magistrate dismissed the charge for “want of proper prosecution” because of the prosecution’s ongoing, unexplained, failure to provide the CCTV footage in accordance with the order made 13 February 2014.
In summary, the orders dismissing the charges in both matters were made on 27 February 2014, for reasons of procedural non-compliance. There had not been a hearing on the merits in either matter. The reason for the order in the Rankine matter was that the complainant/informant had not complied with an order for service of the complete prosecution ‘brief of evidence’. In the Foster matter, the informant had not complied with an order for service of a CCTV recording (part of the prosecution ‘brief of evidence’).
Notices of appeal
Notices of Appeal in both matters contend that the learned stipendiary magistrate lacked the power to dismiss the charge or charges for want of prosecution and erred in purporting to do so.[3]
The appellants argue that the magistrate lacked the power to dismiss the charges for want of prosecution for the following reasons:
(a)That the charge(s) had not been read and as such there was no jurisdiction for the court to dismiss the charge.
(b)That the concept of “want of prosecution” is not a concept known to criminal law.
(c)That the magistrate’s purported order on 13 February 2014 was beyond power.[4]
The magistrate’s jurisdiction
The Court of Summary Jurisdiction is formally established as a court.[5] In s 4 Justices Act (an “Act relating to Justices of the Peace”), the term “Court of Summary Jurisdiction” (or “Court”) is defined to mean “Justices forming the Court for the purposes of hearing and adjudicating upon any case or matter which they have the power to determine in a summary manner, and whether they are acting under this Act or under any other Act incorporated herewith, or by virtue of their commissions, or under the common law.” Pursuant to s 6(1) Justices of the Peace Act, a person who holds an office specified in Schedule 1 to the Act is, by virtue of holding that office, a justice of the peace. The office of ‘Magistrate’ is specified in Schedule 1; ‘Magistrate’ means a Magistrate appointed under the Magistrates Act.[6] Therefore, all magistrates are justices of the peace. In any event, s 43(1) Justices Act provides that every matter of complaint in the Court of Summary Jurisdiction is to be heard and determined by a magistrate “if there is a magistrate present who is competent and willing to act”.[7] A magistrate thus has jurisdiction and power to conduct the hearing of all matters commenced on complaint.[8]
Criminal proceedings in the Court of Summary Jurisdiction are commenced by complaint made to a justice where a person has committed, or is suspected to have committed, a simple offence.[9] There is no definition of “simple offence” in the Justices Act, but under s 3 of the Criminal Code offences are divided into three kinds: crimes, simple offences and regulatory offences. There is no definition of “simple offence” in the Criminal Code either, but s 38E Interpretation Act provides that where the penalty for an
offence is a period of imprisonment of more than two years, the offence is a crime. Pursuant to s 3(4) Criminal Code, an offence not otherwise designated is a “simple offence”. Thus, an offence which carries a maximum term of imprisonment of two years or less, and which is not a regulatory offence, is a simple offence. A person guilty of a simple offence may be found guilty summarily.[10]
In relation to matters commenced on complaint, the jurisdiction of the Court of Summary Jurisdiction does not depend upon the consent of the defendant. However, there are statutory conditions precedent to the magistrate being able to exercise jurisdiction in the particular case. Pursuant to s 67 Justices Act, “the substance of the complaint shall be stated” to the defendant, who must be asked if he “has any cause to show why he should not be found guilty …”. If the defendant “admits the truth of the complaint and shows no sufficient cause why he should not be found guilty”, the magistrate must find him guilty.[11] In practice, the charge is read and the defendant’s plea of guilty or not guilty is taken. Compliance with s 67 is mandatory as it founds the jurisdiction of the magistrate to hear the charge.[12] If the defendant pleads not guilty (or, in the words of the Act, “does not admit the truth of the complaint”), the magistrate proceeds with the hearing, in the usual way.[13]
At the conclusion of the hearing the magistrate, relevantly, has two options: a finding of guilt, or dismissal of the complaint:
“… the Court … shall find the defendant guilty... or dismiss the complaint, ... Provided that the Court may, at any time before the matter has been finally determined, permit the complaint to be withdrawn, upon such terms (if any) as it thinks fit.”[14]
Where the Court finds the defendant guilty, a minute or memorandum of the finding of guilt must be made. If the Court dismisses the complaint, a minute or memorandum of that dismissal must be made and the Court may, on being required to do so “and if it thinks fit”, draw up an order of dismissal and give the defendant a certificate of such order. That certificate is then a bar to any subsequent complaint for the same matter against the defendant.[15]
In addition to the power under s 69 Justices Act to dismiss a complaint after a hearing on the merits, a magistrate has express power under s 63 Justices Act to dismiss a complaint, before a matter proceeds to hearing, if the defendant appears but the complainant does not.[16] It may be noted that a complainant in those circumstances may apply to set aside the dismissal,[17] and that, on the hearing of the application, the magistrate may either refuse to grant the order sought, or set aside the dismissal “on such terms as the Court thinks fit”.[18] There is also an express power of dismissal in s 182 Justices Act if a defendant is prejudiced by a defect in a complaint (defect in substance or form), or by variance between the complaint and the evidence adduced at the hearing, of if the complaint fails to disclose an offence.
It is unclear whether the bar under s 71 Justices Act, referred to in [17], arises in the situation where a complaint is dismissed pursuant to s 63 of the Act, that is, where there has been no hearing on the merits. My preliminary view is that s 71 would apply only where the court dismisses a complaint under s 69, having found the defendant not guilty. That would be consistent with the structure of the Act: the logical connection between s 71 and the almost immediately preceding s 69, and the principles of autrefois acquit. However, it is not necessary for me to determine this issue in order to answer the questions raised by the appeal, just as it is unnecessary to determine whether the provisions of s 71 Justices Act apply to the situation where a complaint is dismissed pursuant to s 182 of the Act.
It can be seen from the discussion in [18] above that the express power of a magistrate to dismiss a complaint before hearing is quite limited.
A magistrate (as a justice) also has specified powers in the pre-trial or interlocutory stages prior to the hearing of the complaint. Under s 44 Justices Act, a single justice has the power to receive a complaint; to issue a summons or warrant on the complaint (to the defendant); to issue a summons or warrant to compel the attendance of any witnesses; to expedite the date for hearing (with the consent of the parties); to adjourn the hearing; and to “do all other acts and matters preliminary to the hearing”.[19]
The Court of Summary Jurisdiction is a statutory court and therefore bound by the legislation under which it is established. The authority for its acts must be found in the powers and functions conferred upon it by the Justices Act.[20] The Court does not have inherent powers. However, as a statutory court which is expressly given certain jurisdiction and powers, it has implied power to do that which may be necessary for the exercise of the jurisdiction and powers expressly conferred.[21] More precise identification of an inferior court’s implied powers is difficult, as Dawson J observed in Grassby v The Queen: [22]
It would be unprofitable to attempt to generalise in speaking of the powers which an inferior court must possess by way of necessary implication. Recognition of the existence of such powers will be called for whenever they are required for the effective exercise of a jurisdiction which is expressly conferred but will be confined to so much as can be “derived by implication from statutory provisions conferring a particular jurisdiction”.
That statement was applied by the Full Court in Bynder v Gokel,[23] in its consideration of the jurisdiction and powers of the former Juvenile Court established under the Juvenile Justice Act 1983 (NT).
Consideration by the Court of Summary Jurisdiction “of the whole matter”, and the Court’s subsequent determination as to whether a defendant is guilty or not guilty (both referred to in s 69 Justices Act) represent the culmination of what by necessary implication must have been an antecedent fair trial.[24] The duty to observe fairness (and to accord procedural fairness), is an important aspect of the judicial function, and is required in pre-trial procedures as well as in the trial hearing.[25] In that context, the power under s 44(f), referred to in [21], to “do all other acts and matters preliminary to the hearing”, should be given a wide and practical interpretation.
By implication, therefore, the power under s 44(f) would permit a magistrate in a complaint matter to make an order requiring evidence or relevant material in the possession of a complainant to be served by a complainant within an appropriate time frame to ensure a fair trial for a defendant.[26] There is also an express or implied power in s 44(e) to adjourn proceedings, for example, in the event that evidence is not served within the time frame ordered. Independently of s 44, there is an implied power to stay proceedings on a complaint in an appropriate case, for example, to prevent an abuse of process or to prevent injustice to the accused caused by undue delay.[27] The authorities establish, however, that the power to order the stay of a criminal prosecution will be used only in exceptional cases.[28]
The issue I have to determine for the first appeal is whether the magistrate constituting the Court of Summary Jurisdiction had implied power to dismiss the complaint of the first appellant, other than in accordance with the express provisions of the Justices Act.
In Consolidated Press Holdings v Wheeler,[29] Mildren J considered whether the Work Health Court could grant summary judgment where there was no specific statutory power or rule of court to enable such an order to be made. His Honour found that the power to dismiss summarily was a matter of practice and procedure. The legislation conferred very wide powers on the Work Health Court to hear and determine applications for compensation, and specifically provided that the practice and procedures of the Court were within the discretion of the Court. Moreover, the legislation gave the Work Health Court all the powers of the Local Court or a magistrate under the Local Court Act, under which rules of court made specific provision for summary judgment. Because of the statutory linking to the Local Court Act and rules of court, Mildren J considered that the Work Health Court had express power to dismiss an application summarily. His Honour also found that the court had incidental (implied) power to do so, as a result of (1) the very wide powers given to the Court by the legislation: “a power in the widest of terms to hear and determine applications for compensation under the Act”, and (2) the fact that, under the legislation, the practice and procedures of the Court were in the discretion of the Court.[30]

There is specific provision in the Justices Act enabling the Chief Magistrate to make rules and give practice directions regulating the practice and procedures of the Court of Summary Jurisdiction “for the purpose of the Court exercising the jurisdiction conferred on the Court.[31] The practice direction establishing the system of pre-trial contest mentions[32] was issued pursuant to that provision. The Justices Act also provides that, subject to the Act and the Regulations, the practice and procedures of the Court in relation to a proceeding within its jurisdiction are in the discretion of the Court.[33] In these respects, the Justices Act is comparable to the former Work Health Act provision considered in Consolidated Press Holdings v Wheeler. However, it could not be said that the Justices Act confers a power on the Court of Summary jurisdiction “in the widest in terms” to hear proceedings on complaint. Rather, the powers granted are specific and limited.
Neither counsel has referred me to any authority which directly supports the proposition that the magistrate had implied power to dismiss a complaint other than in accordance with the specific provisions of the Justices Act. Mr Betts of counsel submits on behalf of the first respondent that to deny the existence of an implied power for a magistrate to dismiss a complaint “when faced with the repeated disobeyance of an order of the Court” would render the contest mention process futile and also represent a denial of procedural fairness to the defendant. Mr Jackson, counsel for the appellants, argues that the magistrate simply did not have jurisdiction because the charges had not been put to the defendant pursuant to s 67 Justices Act and the conditions precedent to the assumption of jurisdiction thereby satisfied.[34]
I have concluded that a magistrate sitting in the Court of Summary Jurisdiction at the pre-trial stage has implied power to dismiss a complaint in circumstances where the complainant fails to comply with Court orders and directions. I consider that the dismissal of a complaint in those circumstances is a matter of practice and procedure,[35] and hence in the discretion of the Court.[36] The implied power is required for the effective exercise of the pre-trial jurisdiction expressly conferred,[37] to ensure compliance with the Practice Direction, and ultimately to ensure a fair hearing, as discussed in [24]. Moreover, I agree with Mr Betts’s submission that the contest mention process is an important aspect of the administration of the criminal justice system in the Court of Summary Jurisdiction. Not only is the implied power required to ensure a fair hearing for the defendant, but it is also required to ensure that justice is administered efficiently in the public interest.
As to the ground of appeal that the concept of “want of prosecution” is not a concept known to the criminal law, it is quite clear that although the magistrate used the words “for want of proper prosecution” when he dismissed the charges, the reason was procedural non-compliance, an unexplained failure to obey orders of the Court, as summarised in [10] above. The second ground must also fail.
It follows that, insofar as the appeal by the first appellant relates to the dismissal of charges on complaint, the appeal must fail. In any event, the appeal is incompetent, because s 163(1) Justices Act expressly excludes an appeal from “an order dismissing a complaint of an offence”, and does not discriminate as to the basis for dismissal.
Further insofar as the appeal by the first appellant relates to the dismissal of charges on complaint, it has not been necessary for me to consider the additional issue as to whether the appeal offends the ‘final order’ principle discussed in Macey v Turner,[38] Tcherna v Garner[39] and Step v Atkins.[40] However, I will need to consider those authorities in relation to the appeals against the purported dismissal of charges on information.
I turn to consider the appeals of both appellants arising from the dismissal of the charges on information for aggravated assault.
Under s 131A(1) Justices Act, the Court of Summary Jurisdiction constituted by a magistrate has jurisdiction to hear and determine in a summary manner a charge in respect of an offence against s 188(2) of the Criminal Code. However, s 131A(2) provides that the Court must not hear and determine a charge in a summary manner “if it is of the opinion that the charge should be prosecuted on indictment”.
In my opinion, the effect of s 131A(2) is that, before the Court may summarily hear and determine a charge against s 188(2) Criminal Code, it must consider whether the charge should be prosecuted on indictment. Generally, that would involve a consideration of the seriousness of the alleged offending (but there may well be other considerations). Although s 131A(2) does not expressly require the court to consider whether the charge should be prosecuted on indictment (rather it is drafted in terms which require the Court not to summarily hear and determine a matter if it is of the relevant opinion), there is nonetheless an implied obligation on the part of the Court to consider in every case whether the charge should be prosecuted on indictment. That obligation is implied as a matter of logic and common sense: if the Court did not consider the question, the Court could overlook something significant, which, if considered, might prevent the Court proceeding with a summary hearing.
There is a further condition precedent to the exercise of jurisdiction. In Birkeland-Corro v Tudor-Stack,[41] Martin CJ considered s 131A(2) in the context of a defendant charged with the indictable offence of aggravated assault contrary to s 188(2) of the Criminal Code, and held that the magistrate’s summary jurisdiction was enlivened only if a defendant consented to the exercise of summary jurisdiction. His Honour said that he was not prepared to infer, in the absence of express words, that the legislature intended that a defendant should be deprived of the right to be tried by jury in respect of the serious offences identified in s 131A.[42]
In the proceedings giving rise to the present appeals, the magistrate had not assumed jurisdiction and hence did not have jurisdiction to hear and determine, in a summary manner, the aggravated assault charges brought against the respondents on information. I turn to consider the consequences.
My earlier conclusion, that the magistrate had implied power to dismiss the complaint against the first respondent, was based substantially on the summary jurisdiction provisions in Pt IV, Div 2 and Div 3 of the Justices Act, which refer only to proceedings commenced on complaint. The pre-trial provisions in s 44 and the hearing provisions in s 67 to s 69 of the Act relate only to matters on complaint, unless incorporated or otherwise made applicable. At the stage proceedings had reached in the cases of the present respondents charged on information, there was no provision in the Justices Act which incorporated or otherwise made applicable the pre-trial provisions or any other of the Court’s powers in proceedings commenced on complaint. By way of comparison, it may be noted that s 106A Justices Act enables a defendant charged on information “with an offence cognisable by a Magistrate under section 120 or 121A” to enter a plea of guilty to the offence charged, without evidence being taken. In such a case, the magistrate (in effect) ceases to be a justice conducting a preliminary examination and becomes the Court of Summary Jurisdiction in relation to such offence[43] and “the procedure and powers of the Court shall be the same, and the provisions of [the Justices Act] shall apply as if the charge were a complaint for a simple offence under [the Justices Act] ...”.[44] However, s 106A has no application to the present appeals.
I have concluded that the magistrate lacked jurisdiction and did not have power to dismiss the charges brought against the respondents on information.
Notwithstanding the conclusion in [40], I am of the view that the appeals from the dismissal of the charges on information are not competent because the orders for dismissal did not constitute a final adjudication of the charges and did not determine the substantive rights of the parties.[45] Notwithstanding the purported orders for dismissal, the appellant informants were at liberty to bring further charges, for the same alleged offending, by laying fresh informations. The bar to further prosecution contained in s 133 Justices Act in favour of a defendant who obtains an order for dismissal would only apply, relevantly, if there had been an order for dismissal after a hearing on the merits under Pt V Div 2 of the Justices Act. That had not occurred in the proceedings giving rise to the present appeals. The defence of autrefois acquit, whether at common law or under the provisions of s 18 of the Criminal Code, “can only arise where a defendant has been in peril of conviction and there has been a dismissal by a court clothed with the jurisdiction to hear and determine the charge or charges”.[46]
The third ground of appeal (in the Foster matter only) was that the order made by the magistrate at the contest mention on 13 February 2014 was beyond power. The impugned order was that the defendant had to be given a copy of CCTV footage in the possession of the police investigating officers and a reasonable opportunity to view that footage before 20 February 2014. Counsel for the appellant, Mr Jackson, argues that the magistrate, by his order, was “directing the content of the prosecution”, and thereby improperly trespassing upon the area of prosecutorial discretion.[47] In my opinion, the appellant’s argument is misconceived. The magistrate was not directing that identified evidence be led at the hearing, but was directing that the evidence be disclosed pre-hearing (whether it was to be adduced or not by the prosecution at the hearing). There is an important difference. If the matter had continued to hearing, it would have been contrary to the interests of justice for the informant to have withheld relevant CCTV footage at the pre-trial stage.
Conclusion
The appeals should be dismissed and I propose to order accordingly. However, I will hear counsel in relation to the formal orders I should make in each appeal, consistent with these reasons, and as to consequential orders (if any) in relation to the proposed alternative proceedings for relief in the nature of certiorari.
--------------------

[1] “Contest Mention” in accordance with the Practice Direction issued by Chief Magistrate Hannam on 4 October 2010, pursuant to s 201A(1) Justices Act, entitled “Court of Summary Jurisdiction Procedure for the Listing of Summary Offences Hearings”.

[2] The magistrate’s order was expressed to apply to “all charges on file ending 0638” and thus included the charge on information.

[3] See Notice of Appeal in O’Neill v Rankine filed 26 March 2014 and Notice of Appeal in Westphal v Foster filed 21 March 2014.

[4] This basis was relied on only in Westphal v Foster, and not O’Neill v Rankine.

[5] See Justices Act, s 41A.

[6] See s 24 Magistrates Act.

[7] Provision is made for two or more Justices to sit if there is no magistrate available.

[8] Justices Act, s 43(1)(a).

[9] Justices Act, s 49(a), subject to the statutory condition precedent referred to in [15] below.

[10] Criminal Code, s 3 provides “Unless otherwise stated, a person guilty of a simple offence or a regulatory offence may be found guilty summary.”

[11] It is not necessary to examine the consequent sentencing provisions for the purposes of this appeal.

[12] See Graham v Atkins [2006] NTSC 51 at [6], [13]. Although the trial in that matter had proceeded on the assumed basis that the defendant had pleaded not guilty, the magistrate and the parties had overlooked the requirement in s 67(1) Justices Act for a plea to be formally taken. The error “involved a fundamental procedure going to the validity of the proceedings in their entirety”. Martin CJ in Graham v Atkins expressly approved the reasoning of Mildren J in Tutty v Reinke (unreported decision delivered 28 March 2006).

[13] Justices Act, s 68(1), (2) and (3). The order in which the parties’ cases are presented is the same as in all adversarial proceedings in which the party seeking to prove a case is dux litis: the complainant’s case and then the defendant's case. The practice in relation to the examination, cross-examination and re-examination of witnesses, the right to address and the order of addresses is in accordance with the practice of the Supreme Court in criminal trials.

[14] Justices Act, s 69.

[15] Justices Act, s 71(2). There is a similar provision in s 133 of the Act in relation to the legal consequence of summary hearings of charges on information for a minor offence (s 120) and a “minor indictable offence” (s 121A and 131A).

[16] Justices Act, s 63 provides: “If the defendant appears in obedience to the summons, or is brought before the Court by virtue of any warrant, then if the complainant, having had due notice, does not appear in person or by his counsel or solicitor, the Court shall dismiss the complaint, unless for some reason it thinks proper to adjourn the hearing.” Under s 63(2), the power may be exercised by a single justice.

[17] Justices Act, s 63A(1A).

[18] Justices Act, s 63A(7)(b).

[19] Justices Act, s 44(f).

[20] It is not presently relevant to consider any other empowering legislation applying to the Court of Summary Jurisdiction.

[21] Jackson v Sterling Industries Ltd (1987) 162 CLR at 623 - 4 per Deane J (Mason CJ, Wilson and Dawson JJ agreeing); Grassby v The Queen (1989) 168 CLR 1 at 16 - 17, per Dawson J; Bynder v Gokel (1998) 8 NTLR 91 at 95 - 97, per Bailey J, Kearney and Priestley JJ agreeing; Consolidated Press Holdings v Wheeler (1992) 84 NTR 42 at 45 - 47.

[22] (1989) 168 CLR 1 at 17.

[23] Bynder v Gokel (1998) 8 NTLR 91 at 97, per Bailey J, Kearney and Priestley JJ agreeing.

[24] Director of Public Prosecutions v Shirvanian and Anor (1998) 44 NSWLR 129 at 137D, per Mason P, Beazley JA agreeing. Although procedural fairness was not spelt out in the Justices Act (NSW) itself, the obligation to accord procedural fairness was held to be necessarily implied in the absence of clear language to exclude it. It may be noted that s 80 Justices Act (NSW), considered in Shirvanian, was substantially the same as s 69 Justices Act (NT).

[25] Jago v The District Court of New South Wales and ors (1989) 168 CLR 23 at 31, per Mason CJ.

[26] See, for example, Gaffee v Johnson (1996) 90 A Crim R 157.

[27] See Grassby v The Queen (1989) 168 CLR 1 at 17, per Dawson J; Jago v The District Court of New South Wales and ors (1989) 168 CLR 23 at 31, per Mason CJ; Director of Public Prosecutions v Shirvanian and Anor (1998) 44 NSWLR 129 at 139A, per Mason P, Beazley JA agreeing. Observations to the contrary made by the South Australian Supreme Court (In Banco) in respect of the Justices Act (SA) in R v O’Loughlin; Ex parte Ralphs (1971) 1 SASR 219, per Bray CJ at 231 and Wells J at 286 are no longer relevant to the Justices Act (NT), given the establishment of the Court of Summary Jurisdiction.

[28] See, for example, Barton v R (1980) 147 CLR 75 at 111 per Wilson J, cited by Mason CJ in Jago v District Court of New South Wales (1989) 168 CLR 23 at 34; R v Ulman-Naruniec [2003] SASC 437; 143 A Crim R 531 at [16] per Bleby J; at [205] per Sulan J. See also Breedon v The Queen (1995) 124 FLR 328 at 332-3.

[29] (1992) 84 NTR 42.

[30] (1992) 84 NTR 42 at 47.

[31] Justices Act, s 201A(1)(a).

[32] See the footnote to [5] above.

[33] Justices Act, s 201A(4).

[34] Conditions precedent as explained in [15] above.

[35] See Consolidated Press Holdings v Wheeler (1992) 84 NTR 42 at 47.30.

[36] Justices Act, s 201A(4).

[37] Justices Act, s 44.

[38] (1999) 150 FLR 476.

[39] (1999) 154 FLR 243.

[40] [2008] NTCA 5.

[41] [2005] NTSC 23 at [99] to [101].

[42] [2005] NTSC 23 at [101]. That statement from the decision in Birkeland-Corro v Tudor-Stack was cited with approval by the Full Court in Megson v The Queen [2006] NTSC 15 at [19] - [20]. See also Ellis v Balchin [2009] NTSC 17 at [84], [90].

[43] Justices Act, s 106A(2)(a).

[44] Justices Act, s 106A(2)(b).

[45] See s 163 Justices Act and the authorities cited in [33] above.

[46] Ward v Hodgkins [1957] VR 715 at 718; Potter and Potter v Liddy (1984) 14 A Crim R 204 at 208; Wills v Trenerry [1999] NTSC 2 at [24].

[47] The ground of appeal was limited to that contention. Reference was made to Maxwell v The Queen (1996) 184 CLR 501 at 534; and Elias v The Queen (2013) 248 CLR 483.