Peter Andrew Fiore v The Magistrates' Court of Victoria and Ors(according to the attached Schedule)
[2020] VSCA 314
•4 December 2020
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S EAPCI 2020 0023
| PETER ANDREW FIORE | Applicant |
| v | |
| THE MAGISTRATES’ COURT OF VICTORIA & ORS (according to the attached Schedule) | Respondents |
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| JUDGES: | MAXWELL P, KAYE and WEINBERG JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 19 November 2020 |
| DATE OF JUDGMENT: | 4 December 2020 |
| MEDIUM NEUTRAL CITATION: | [2020] VSCA 314 |
| JUDGMENT APPEALED FROM: | [2020] VSC 92 (Niall JA) |
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ADMINISTRATIVE LAW – Judicial review – Statutory interpretation – Exercise of power conditioned on decision-maker’s state of satisfaction – Warrant to arrest – Applicant resided in Western Australia – Charged with serious Victorian offences – Informant sought warrant to secure applicant’s extradition – Whether open to magistrate to be satisfied that circumstances constituted ‘other good cause’ for issue of warrant – Request for reasons – Statement of reasons provided – Whether statement capable of supplementing reason stated on warrant – Whether reasons disclosed ‘evident [or] intelligible justification’ for decision – Whether permissible to combine charge-sheet and warrant - Leave to appeal refused – Christie v Leachinsky [1947] AC 57 distinguished, Minister for Immigration & Citizenship v Li (2013) 249 CLR 332 applied, Doyle v Commissioner of Police [2020] NSWCA 11 distinguished – Crimes Act 1958 ss 459, 464A, Criminal Procedure Act 2009 ss 5, 6, 12, 13.
WORDS AND PHRASES – ‘other good cause’.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr T Clarke | Jeff Cranston and Associates |
| For the First Respondent | No appearance | |
| For the Second and Third Respondents | Ms N Hodgson | Victorian Government Solicitor |
MAXWELL P
KAYE JA
WEINBERG JA:
Summary
The applicant seeks leave to appeal against the dismissal of the proceeding which he brought, claiming judicial review of a decision of the Magistrates’ Court to issue a warrant for his arrest in Western Australia.[1]
[1]Fiore v Magistrates’ Court of Victoria [2020] VSC 92 (‘Reasons’).
Section 12(5) of the Criminal Procedure Act2009 (the ‘CPA’) prohibits the issue of a ‘warrant to arrest’ unless the Court is satisfied — by sworn evidence — that:
(a) it is probable that the accused will not answer a summons; or
(b)the accused has absconded, is likely to abscond or is avoiding service of a summons that has been issued; or
(c)a warrant is required or authorised by any other Act or for other good cause.[2]
[2]Criminal Procedure Act 2009 s 12(5)(a)–(c).
In the present case, the stated basis for the issue of the warrant was the magistrate’s satisfaction that it was ‘required … for other good cause’, within the meaning of s 12(5)(c). The evidence before the magistrate established that the applicant was living in Western Australia. The warrant was sought to enable the applicant to be extradited to Victoria to face serious charges of violent crime and extortion.
The principal question in the proceeding concerns the lawfulness of the decision to issue the warrant. The applicant contends that, on the proper construction of s 12(5), it was not open to the magistrate to be satisfied that the warrant was ‘required for other good cause’. In the alternative, he variously contends that the decision ‘lacked an evident and intelligible justification’; that the magistrate misconstrued the statutory provisions and/or failed to take into account relevant considerations; and that the warrant was invalid on its face.
Niall JA, sitting in the Common Law Division, rejected the applicant’s contentions and dismissed the proceeding. For reasons which follow, we respectfully agree with his Honour’s conclusions, and the reasons he gave. Leave to appeal must therefore be refused.
Factual background
On 10 October 2019, the second respondent, a member of Victoria Police, applied to the Ringwood Magistrates’ Court for the issue of an arrest warrant against the applicant. As we have said, he was then living in Western Australia. The application was made by the filing by the second respondent of a document entitled ‘Charge-sheet and Warrant to Arrest’. The charge-sheet contained five charges, consisting of two charges of extortion, and individual charges of aggravated burglary, intentionally causing serious injury and intentionally causing injury. It was alleged that the applicant committed the offences at premises in Rowville on 13 September 2019.
In the section of the document entitled ‘Request for issue of a warrant for arrest’, and adjacent to the box containing the words ‘I apply for the issue of a warrant to arrest on the following grounds:’, the second respondent inserted the following:
The accused is permanently residing in Western Australia and wanted for arrest for offences of Aggravated Burglary and Extortion with Intent to Inflict Injury with intention of seeking extradition to Victoria.
In the next section, entitled ‘Warrant to Arrest’, the second respondent inserted a ‘tick’ in the box on the document next to the words ‘I am satisfied by evidence … on oath’, and the box next to the words ‘Or for other good cause namely:’. Adjacent to that box the second respondent typed the following:
Extradition from Western Australia is being sought.
After the document was filed, a magistrate signed the warrant section next to the words ‘issued by’ and hand wrote the date ’10/10/19’.
Following issue of the warrant, the applicant was arrested in Perth on 16 October 2019 and taken into custody. On the following day, 17 October, he appeared before the Magistrates’ Court of Western Australia. This was the initial hearing of the proceeding for his extradition, commenced by police under s 83 of the Service and Execution of Process Act 1992 (Cth). At that hearing, the applicant applied to set aside the warrant on the basis it was invalid. The Western Australian magistrate adjourned the matter to 24 October and granted bail to the applicant.
On 23 October, the solicitors for the applicant sent an email to the Ringwood Magistrates’ Court, requesting that the magistrate provide reasons for his decision to issue the warrant. When the matter came before the Western Australian Magistrates’ Court on the following day, the proceeding was further adjourned by consent, and the applicant’s bail was extended.
On 5 November, the applicant commenced the present proceeding by originating motion. On 14 November, the Registrar of the Magistrates’ Court at Ringwood forwarded an email to the applicant’s solicitor containing a statement of the magistrate’s reasons for issuing the warrant. The email stated as follows:
I refer to your attached letter dated 22 October 2019. Please find below response from His Honour Magistrate La Rosa.
Further to your request for reasons for my decision to issue the interstate arrest warrant relating to Peter Fiore, I advise as follows:
1. I am a duly appointed Magistrate in the State of Victoria.
2.On 10 October 2019, I was sitting at Ringwood Magistrates’ Court, the Court to which I am currently assigned.
3.On that day, along with my other duties in Court, I was the assigned Duty Magistrate, responsible for the consideration of Chamber matters, which included the consideration of applications by police for search warrants, the review of any property seized under such warrants, and any other matter that needs to be dealt with in Chambers.
4.The above matters are routinely attended to in a private office in the Registry of the Court, and are not audio recorded.
5.On 10 October 2019, I was asked by Court staff to consider the issue of interstate arrest warrants, which they informed me required the attention of a Magistrate. I was informed that whilst a Registrar could and usually did issue warrants for the arrest of an accused person, the fact that these matters related to accused residing interstate, they required my attention.
6.I believe that I satisfied myself that I had the power to so issue the warrants in question, pursuant to ss29 and 57 of the Magistrates’ Court Act 1989 (Vic).
7.I attended the office used for these purposes in the company of a clerk of Courts, and was introduced to D/S/C Joanne Poynton.
8.She informed me that she was the Informant in the matter and proceeded to provide me with a narrative of the matters that she said were relevant to the issue of the arrest warrants involving accused Peter Fiore and Dane Corbet.
9.Upon hearing the narrative, and I believe viewing still shots taken from the CCTV footage, I formed the view that reasonable grounds existed for the belief that the persons named in the arrest warrants were involved in the alleged offending the subject of the proposed charges.
10.As I had reached that view, I signed and caused to be issued the two charge sheets and warrants to arrest in relation to Peter Fiore and Dane Corbet.
On 18 November, the Registrar of the Magistrates’ Court sent an email to the applicant’s solicitors with a supplement to the reasons stating:
Further to the previous email relating to this matter, the Magistrate advises that;
·As is my practice, my recollection is that I had the applicant informant take the oath/affirmation prior to her providing me with the material that was said to support the application for the issue of the arrest warrants as referred to in paragraph 8.
Grounds of review
In the proceeding below, the applicant relied on six grounds of judicial review. The first four of the grounds contended that the decision of the Magistrates’ Court to issue the warrant was vitiated by jurisdictional error or error of law on the face of the record. Those four grounds may be summarised as follows:
1. The decision to issue the warrant was induced by a material misstatement of facts or by fraud, contained in the sworn statement of the second respondent, namely, that the applicant had physically assaulted a complainant, and that the applicant was on bail in Western Australia for ‘minor matters’, whereas the applicant was on bail for a single indictable count of fraud (of $125,000) (ground 1.1).
2. The magistrate erred in forming the state of satisfaction stipulated in s 12(5)(c) of the CPA by issuing the warrant on the grounds that the circumstance that the applicant was ‘wanted for arrest … with intention of seeking extradition to Victoria’ constituted ‘good cause’ (ground 1.2).
3. The magistrate took into account an irrelevant consideration, namely, that extradition from Western Australia was sought by the second respondent, or failed to take into account the relevant consideration of whether the applicant might ‘simply’ answer a summons to appear in Victoria (ground 1.3).
4. The decision to issue the warrant was arbitrary or capricious, or was disproportionate, ‘plainly unjust’ or otherwise unreasonable, in authorising the applicant’s arrest and involuntary removal from Western Australia to Victoria in the absence of any evidence that the applicant might not answer a summons in Victoria (ground 1.4).
The two remaining grounds contended that the warrant was ‘otherwise invalid on its face’, because:
5. The warrant did not disclose that a statutory pre-condition for the issue of the warrant was fulfilled, namely that the charge-sheet was filed before the arrest warrant was issued or at all (ground 2.1).
6. The charge-sheet and arrest warrant were incorrectly incorporated into a single document, whereas sections 5, 6, 12 and 13 of the CPA ‘implicitly’ require ‘stand-alone’ documents (ground 2.2).
In the proceeding below, the applicant relied on each of those six grounds. The application for leave to appeal is directed to the judge’s conclusions on four of those grounds, namely, grounds 1.2, 1.3, 1.4 and 2.2. We will confine our summary of his Honour’s reasons to the sections that were concerned with those grounds.
The judge’s reasons
In support of ground 1.2, the applicant contended that s 12(5) of the CPA is only concerned with whether an accused person will attend court. Accordingly, it was submitted that the magistrate misconstrued that provision by treating the fact that the applicant was residing out of Victoria, and that an application for extradition was sought, as constituting a sufficient basis on which to conclude that there was ‘other good cause’ to issue the warrant under s 12(5)(c).[3]
[3]Reasons [64].
The judge rejected that submission, concerning the construction of the phrase ‘other good cause’, for three reasons. First, paragraphs (a) and (b) of s 12(5) are directed to ensuring that an accused person will attend court. If the applicant’s construction of s 12(5)(c) is correct, that paragraph would add little, if anything, to those provisions.[4] Secondly, in its ordinary meaning, the phrase ‘good cause’ connotes a good reason according to the justice of the case, and there was no reason to confine the phrase to a narrower meaning.[5] Thirdly, it would be surprising if the power to issue an arrest warrant could not be directed to a purpose unrelated to securing the attendance of an accused person, such as preventing an interference with the administration of justice that might occur if an accused person were permitted to remain at liberty until the first return date listed in the summons.[6]
[4]Ibid [75].
[5]Ibid [76].
[6]Ibid [77].
In respect of that third reason, the judge examined the statutory provisions that concern the power of a police officer to arrest a suspect without warrant. His Honour noted that the discretion reposed in a police officer is principally, ‘but not necessarily exhaustively’, governed by an assessment of whether the person arrested would attend court if served with a summons.[7] His Honour considered that there was ‘… no reason to conclude that s 12(5)(c), given the breadth of its language, could not cover similar exigencies.’[8]
[7]Ibid [82].
[8]Ibid.
The judge then turned to a further submission, made on behalf of the applicant, that even if s 12(5)(c) has a broader scope than securing the attendance of an accused person at court, nevertheless extradition from another State of itself would not be a sufficient basis for issuing a warrant to arrest a person who is outside Victoria.
The judge noted that in advancing that submission the applicant had accepted that an accused person’s residence interstate, and the need to extradite that person, is not an irrelevant consideration. In respect of that submission the judge stated:
whether or not extradition alone provides an adequate basis for a warrant does not arise because I am not satisfied that extradition was the only matter that the magistrate took into account and so the ground fails.[9]
[9]Ibid [86].
In reaching that conclusion, the judge noted that the magistrate had recorded, in his reasons, that the second respondent had given a narrative of the offending, and that he had also viewed still shots taken from the CCTV footage. Thus, the magistrate was cognisant of the seriousness of the charges, of the fact that there were reasonable grounds for the belief that the applicant was involved in the offending, and that he was residing out of Victoria.[10] Thus, the judge was not persuaded that the sole reason upon which the magistrate had issued the warrant was that the applicant was a resident of another state and his extradition was being sought.
[10]Ibid [88].
The judge then turned to the submission, advanced on behalf of the applicant under ground 1.3, that the magistrate had failed to take into account whether the applicant might answer a summons in Victoria in any event. His Honour noted that the warrant specified the potential grounds for a warrant under s 12(5), including whether it was probable that the applicant would answer a summons. Further, his Honour said, the nature of the alleged offending, the fact that the applicant permanently resided interstate, and the fact that police were seeking extradition, were all matters that might bear on whether the applicant might answer a summons. Accordingly, his Honour was not persuaded that the magistrate had failed to consider whether, in the absence of arrest, the applicant might answer a summons to attend court in Victoria.[11]
[11]Ibid [96].
Under ground 1.4, the applicant had submitted that the decision by the magistrate to issue the warrant was arbitrary, capricious or disproportionate. The judge rejected that ground concluding:
Having regard to his reasons for decision, I am not persuaded that the magistrate’s decision to issue an arrest warrant for the plaintiff was arbitrary, capricious or disproportionate. Nor was it plainly unjust. Given the seriousness of the charges, the fact that the plaintiff was interstate, had no apparent connection to Victoria, and that the magistrate was given a narrative of the offence that permitted him to conclude that there were reasonable grounds for the belief that the persons named in the warrant were involved in the alleged offending, I am satisfied that it was reasonably open to the magistrate to issue a warrant to arrest.[12]
[12]Ibid [105].
Finally, his Honour rejected ground 2.2, that the warrant was invalid because the charge-sheet and the arrest warrant were incorporated into one single document. In support of that ground, the applicant had submitted that the presentation to the magistrate of a combined charge-sheet and warrant blurred the distinction between the filing of a charge-sheet on the one hand, and the issue of the warrant on the other hand. It was submitted that there was an appreciable risk that the magistrate would be distracted from a proper consideration of the application, by being presented with the document in that combined form.
The judge rejected that submission. His Honour noted that the act of filing the charge-sheet was not an act of the court, but rather of the party who sought to commence the criminal process. His Honour did not accept that the exercise of power contemplated by s 12(5) of the CPA would be impermissibly distracted by the
presentation of the document in a combined form. Further, there was nothing in the CPA that required that the charge-sheet and warrant be contained in separate documents. Accordingly, his Honour concluded that the combined form of the charge-sheet and warrant was not invalid.[13]
[13]Ibid [122]–[124].
Grounds of application for leave to appeal
As noted, the applicant seeks leave to appeal on eight grounds, namely:
Judicial Review Ground 1.2
1.The learned Judge erred in holding that there was no reason to give the phrase ‘or for other good cause’ in s 12(5)(c) of the Criminal Procedure Act 2009 any narrow construction, and that ‘other good cause’ is not confined to questions of an accused’s attendance at court: at [74]-[76], [83].
2.The learned Judge erred in failing to hold that the Magistrate’s reason or reasons for issuing the Warrant to Arrest were required to be disclosed on the face of the Warrant: at [88]–[90].
3.The learned Judge erred in failing to find that the sole ‘other good cause’ identified in the Warrant to Arrest, namely that ‘Extradition from Western Australia is being sought’, was an insufficient and impermissible basis for the issue of a warrant ‘for other good cause’ under s 12(5)(c): at [86], [91].
4.The learned Judge erred in reading the Magistrate’s statement of reasons cumulatively with the reason stated on the face of the Warrant to Arrest: at [88]–[90].
5.The learned Judge erred in finding that the fact that the Applicant was wanted for extradition was not the sole reason for the Magistrate’s decision to issue the warrant: at [86]–[91].
Judicial Review Ground 1.3
6.The learned Judge erred in finding that he was not satisfied that the Magistrate failed to take into account whether or not the Plaintiff might simply answer a summons in Victoria, in circumstances where neither the box ticked and the reason stated on the face of the Warrant to Arrest, nor the Magistrate’s statement of reasons, evidenced that the Magistrate had turned his mind to whether a summons would likely be insufficient to secure attendance or would otherwise be inappropriate: at [96].
Judicial Review Ground 1.4
7.The learned Judge erred in holding that the decision to issue the warrant did not lack an evident and intelligible justification (at [105]), in circumstances where—
(a)the Magistrate’s subsequent statement of reasons bore no evident or cogent relationship with the ground indicated on the face of the Warrant to Arrest;
(b)the Magistrate’s subsequent statement of reasons indicated that the Magistrate incorrectly addressed himself to the requirements for a valid arrest without warrant under s 459(1)(a) of the Crimes Act 1958; and
(c)the Magistrate’s statement of reasons disclosed no independent evidence of the Magistrate having turned his mind to what, if any, ‘other good cause’ existed for the issue of the arrest warrant under par. 12(5)(c) of the CPA.
Judicial Review Ground 2.2
8.The learned Judge erred in upholding the validity of the arrest warrant notwithstanding that it was contained in the same document as the charge sheet. In holding that it was permissible to combine a charge-sheet and an arrest warrant in the one document, his Honour misconstrued-
(a)the relevant provisions of the CPA, namely ss. 5, 6(1), (3) and (4), 12(1), (4) and (5), and 13; and
(b)the relevant provisions of the Magistrates’ Court Act 1989, namely ss 3(1) (definition of ‘process’), 16(1AB) (prohibiting the making of criminal procedure rules that are inconsistent with the CPA), and 57, 58 and 61 (part of the distinct legislative regime governing warrants contained in Subdivisions 1 and 2 of Part 4 of Division 3): at [122]–[123].
Ground 1 — submissions
In support of ground 1, counsel for the applicant referred to the principle of statutory construction known as the principle of legality. According to that principle, a legislative provision which might alter a common law right, such as the liberty of the subject, should be construed strictly, in a manner that is compatible with that right, in the absence of express and clear language to the contrary. In that context, counsel noted that s 12(4) and (5) establish a hierarchy of process, commencing with the issue of a summons, and authorising the issue of a warrant to arrest, only if a registrar or magistrate is satisfied, by sworn or affirmed evidence, of one of the matters specified in subsection (5).
Counsel further contended that the ‘unifying theme’ of s 12(5)(a) and (b) is that a warrant should only be issued if the service of a summons would likely be ineffective to ensure the attendance of the accused person in court. Counsel submitted that the phrase ‘other good cause’, in paragraph (c), should be construed harmoniously with the criteria specified in paragraphs (a) and (b), in accordance with the canon of statutory construction ejusdem generis.
He submitted that the phrase ‘or other good cause’ constitutes a ‘residual’ or ‘sweep up’ category that is closely tied, in content, to the two preceding paragraphs. Counsel submitted that application of s 21(1) and s 32(1) of the Charter of Human Rights and Responsibilities Act 2006 (‘the Charter’), the principle of legality and the structure of s 12(4) and (5), compel such a construction. Thus, it was submitted, the phrase ‘other good cause’ would only apply in exceptional cases, being cases which would be analogous to, but not fall within, the circumstances posited in paragraphs (a) and (b) of s 12(5).
In response, counsel for the respondent submitted that the construction of s 12(5) contended for by the applicant ignores the first part of s 12(5)(c), which applies to circumstances in which a warrant is ‘required or authorised by any other Act’. That circumstance was not of the same kind or genus as the circumstances specified in paragraphs (a) and (b). Further, counsel for the applicant had not been able to postulate any circumstance affecting the attendance of the accused person in court to answer a summons which would not fall within paragraphs (a) and (b) of s 12(5). Accordingly, it was submitted, the construction contended for would deprive the phrase ‘other good cause’ in s 12(5)(c) of any content or utility.
Ground 1 — analysis and conclusion
By its nature, a power of arrest necessarily impinges on the liberty of the
subject. Accordingly, both the principle of legality,[14] and s 21(1) and s 32(1) of the Charter, require that such a statutory provision must be construed strictly in accordance with the terms in which it is expressed.
[14]Watson v Marshall (1971) 124 CLR 621, 629; [1971] HCA 33 (Walsh J); Smith v Corrective Services Commission (NSW) (1980) 147 CLR 134, 139; [1980] HCA 51 (Stephen, Mason, Murphy, Aickin and Wilson JJ).
The submissions advanced on behalf of the applicant were principally based on the proposition that the phrase ‘other good cause’ may not be construed ‘at large’. Rather, it was submitted, it must be construed in a manner that is connected to the purposes specified in s 12(5)(a) and (b), namely, to address the situation in which it is probable that the accused would not answer a summons, or that the accused has absconded or is likely to abscond. The central thrust of the submissions made on behalf of the applicant was that the phrase ‘other good cause’, in paragraph (c), must belong to the same ‘genus’ as those two preceding paragraphs.
In our view, there are three difficulties with those submissions. First, as counsel for the respondent pointed out, the submissions ignore, and give no effect to, the first part of paragraph (c) of s 12(5), which contains the words ‘a warrant is required or authorised by any other Act’. A circumstance of that kind is quite independent of, and distinct from, the circumstances identified in paragraphs (a) and (b). It is significant that the phrase ‘other good cause’ is placed within paragraph (c), after the words ‘is required or authorised by any other Act’, rather than within either paragraph (a) or (b). Accordingly, whatever ‘genus’ may be discerned from those paragraphs plainly does not extend to paragraph (c).
In those circumstances, the canon of statutory construction ejusdem generis, and the process of contextual construction, neither compel nor justify a restriction of the phrase ‘or other good cause’ to circumstances akin to those described in paragraphs (a) and (b). In this context, it might also be observed that for some time
ejusdem generishas been regarded with a degree of reservation by the courts.[15]
[15]R v Regos (1947) 74 CLR 613, 623; [1947] HCA 19 (Latham CJ); Cody v JH Nelson Pty Ltd (1947) 74 CLR 629, 647–9; [1947] HCA 17 (Dixon J); Gas & Fuel Corporation (Vic) v Comptroller of Stamps [1964] VR 617, 620 (Herring CJ and Adam J); Mattinson v Multiplo Incubators Pty Ltd [1977] 1 NSWLR 368, 373 (Mahoney JA); Greater Shepparton City Council v Clarke (2017) 56 VR 229, 249–50 [67]–[70]; [2017] VSCA 107 (Santamaria, Beach and Kaye JJA).
Secondly, the applicant’s construction would deprive the phrase ‘other good cause’ of any content, and would effectively render it otiose. In submissions before both the primary judge and this Court, counsel for the applicant was invited to suggest a circumstance in which such ‘good cause’ might be found, which would be akin to, but not fall within, the circumstances described by s 12(5)(a) and (b). In response, counsel suggested that there might be ‘other good cause’ where an accused person had on a previous occasion attended court, but was living remotely and, due to having limited funds, would not be able to attend again. Plainly, however, that example would fall comfortably within s 12(5)(a).
The inability of counsel to postulate an example reflects the terms in which paragraphs (a) and (b) are expressed. Taken together, they comprehensively cover the field of situations in which there is a likelihood that the accused will not physically attend court in person to answer a summons. There would be no reason for Parliament to have considered it necessary to include, in s 12(5), the phrase ‘other good cause’, if it were confined in the manner contended for by the applicant.
The third difficulty with the applicant’s submission is that it is based on an incomplete conception of the purpose and function of the arrest power. As the primary judge correctly noted, the function and effect of the arrest of an accused person is to bring that person within the control of the court.[16] While physical presence and attendance at court is central to that control, it is not the sole function, effect or purpose of an arrest.
[16]Reasons [73].
Importantly, where an accused person is arrested (whether pursuant to a warrant issued under s 12 of the CPA or without warrant under s 459 of the Crimes Act 1958), s 464A of the Crimes Act provides that that person must be released unconditionally, released on bail, or brought before a bail justice or the Magistrates’ Court within a reasonable time of being taken into custody. The second and third such circumstances — being released on bail or brought before a bail justice — would engage the provisions of the Bail Act 1977, including s 4E. That section provides that the relevant considerations in determining whether to grant bail are not confined to whether there is a risk that the accused might fail to answer bail, but also include whether the accused might commit an offence, endanger the safety and welfare of members of the community, or obstruct the course of justice, while at large pending trial.
In that respect, it is not uncommon for an arrest to be effected legitimately in order to prevent an accused person reoffending, to protect the public, or to ensure that the accused not obstruct the course of justice by disposing of relevant evidence or interfering with witnesses. As was correctly accepted by counsel for the applicant, each of those purposes would constitute ‘other good cause’ in s 12(5)(c) of the CPA. Self-evidently, none of them could be described as falling within the ‘genus’ of the circumstances specified in paragraphs (a) and (b), namely, securing the attendance of the accused person in court.
For those reasons, we are not persuaded that the phrase ‘other good cause’ must be confined to circumstances connected with ensuring an accused’s attendance in court. It follows that ground 1 must fail.
Ground 2 — submissions
The contention advanced under ground 1.2 of the originating motion was that the magistrate did not form the state of satisfaction contemplated by s 12(5)(c) of the CPA. This was said to be so because the ground stated on the warrant — ‘Extradition from Western Australia is being sought’ — was not of itself sufficient to constitute ‘good cause’ within the meaning of s 12(5)(c).
The judge rejected that contention. In his Honour’s view, there was no basis upon which to conclude that the magistrate only had regard to the fact that extradition was sought. The judge noted that both the warrant, and the magistrate’s reasons, suggested that other factors were taken into account, including the nature and gravity of the offending, the strength of the case against the applicant, and the fact that he was resident interstate.[17]
[17]Ibid [90].
In this Court, counsel for the applicant submitted that, in determining the validity of the magistrate’s decision to issue the warrant, it was impermissible for the judge to have regard to the magistrate’s reasons, as they were not contained in the warrant itself. In support of that submission, counsel relied, with some emphasis, on the principle discussed by the House of Lords in Christie v Leachinsky,[18] that when a person is placed under arrest, that person must be informed of the nature of the offence with which he or she is charged.
[18][1947] AC 573 (‘Christie v Leachinsky’).
According to the argument, since an arrest warrant is required to state or contain the reasons for the issue of the warrant, it is only permissible to have resort to those reasons in order to determine whether it was validly issued. Thus, it was submitted, if those reasons were insufficient to comply with the relevant statutory requirements, the validity of the warrant could not be salvaged by relying on grounds stated elsewhere.
In response, counsel for the respondent noted that the substance of ground 2 had not been argued before the primary judge. In any event, it was submitted, the argument advanced on behalf of the applicant was misconceived, because it sought to equate the requirement concerning what a person is entitled to be told upon arrest with the requirement that the reason for the issue of the warrant be disclosed on the face of the document. No authority or statutory provision had been identified to support the proposition that the warrant must, on its face, disclose the reason for its issue.
Ground 2 — Analysis and conclusion
As counsel for the respondent correctly noted, there is no statutory provision which stipulates that an arrest warrant issued ‘in the first instance’ must contain a statement of the reasons for its issue. Our attention was drawn to s 61(6) of the Magistrates’ Court Act 1989, which provides that a warrant to arrest ‘other than in the first instance’ must include a statement of the reason for issuing the warrant. A warrant of the kind issued in this case is thus expressly excluded.
Counsel for the applicant relied on the well-known decision of the House of Lords in Christie v Leachinsky. That decision, and other authorities on the same point,[19] do not support the applicant’s contention. They are directed to a different principle, namely, that a person who is arrested must be informed of the reason for the arrest. The decisions make clear that it is not necessary for the arresting officer to inform the accused person of the specific charge or charges. What is required is a statement in non-technical language of the substance of the offence or offences in respect of which the person is placed under arrest. Plainly, that requirement has no bearing on the form or content of the arrest warrant itself.
[19]See, eg, Johnstone v New South Wales (2010) 202 A Crim R 422, 434–5 [43]–[46]; [2010] NSWCA 70 (Beazley JA); R v Tipping (2019) 133 SASR 58, 93–4 [138]–[142] (Peek J), 100 [162] (Blue J); [2019] SASFC 41.
It has not been contended that, on his arrest, the applicant was not informed of the reason for his arrest, or of the charges on which he was being arrested. That is, it was not suggested that the requirements, discussed in Christie v Leachinsky, were not complied with by the police member who arrested him. Even if there had been any such non-compliance, it could not affect the validity of the decision to issue the warrant, as distinct from the manner of its execution. Relevantly, counsel did not refer to any authority which has applied the Christie v Leachinsky requirements to the issue of an arrest warrant. The absence of any such authority is not surprising, since, as we have discussed, the issue of the warrant, and the conduct of the arrest, are distinct processes, to which different legal principles necessarily apply.
Accordingly, ground 2 must fail.
Grounds 3, 4 and 5 — submissions
It is convenient to consider grounds 3, 4 and 5 together.
In essence, ground 3 is based on the assumption that, in determining whether the issue of the warrant was valid, it is only permissible to consider and take into account the specific reason for issue stated on the face of the warrant. As an alternative, grounds 4 and 5 are directed to the use made by the judge of the magistrate’s statement of reasons.
Under ground 3, counsel for the applicant submitted that the reason stated on the warrant as ‘other good cause’ — ‘wanted for extradition’ — involved an impermissible process of reasoning by the magistrate. The issue of a warrant in one State is a necessary pre-requisite in the apprehension of a person in another State under s 82(1) of the Service and Execution of Process Act. Accordingly, it was submitted, the postulation of ‘wanted for extradition’ as ‘other good cause’ elided the end that was sought to be achieved with the grounds on which the warrant might be lawfully issued.
Under grounds 4 and 5, counsel for the applicant submitted that the magistrate’s reasons, provided three weeks after the issue of the warrant, bore no resemblance with, or cogent relation to, the reason specified on the face of the warrant. Those reasons made no reference to extradition, to the applicant’s residence interstate, or to whether the grounds specified in s 12(5)(a) and (b) had been satisfied. Counsel submitted that where, in a case such as this, reasons subsequently provided are inconsistent, or bear no evident relationship, with the reasons stated on the face of the warrant, then those later reasons cannot be combined with the reasons stated in the warrant in determining whether the warrant was issued for ‘other good cause’.
In response, counsel for the respondent submitted that ground 3 proceeded on the false assumption that the primary judge found that the extradition of the applicant from Western Australia was the sole ‘other good cause’ relied on by the magistrate. In response to grounds 4 and 5, counsel noted that under s 10 of the Administrative Law Act 1978, any statement of reasons by a tribunal or inferior court forms part of the decision and accordingly is incorporated in the record of the tribunal or court. At the hearing before the primary judge, counsel for the applicant referred to and relied specifically on the reasons provided by the magistrate. Accordingly, it was submitted, the applicant could not now contend that the judge fell into error by doing so.
In response to ground 5, counsel for the respondent further submitted that the reasons provided by the magistrate were harmonious with the ‘other good cause’ stated on the warrant. Those reasons confirmed the statement on the warrant that the magistrate had received evidence on oath. They also confirmed that the magistrate was satisfied, on the information provided by the second respondent, that reasonable grounds existed for the belief that the applicant was involved in the serious offending the subject of the charges. Accordingly, it was submitted, the judge was entitled to take into account the reasons provided by the magistrate in determining whether the magistrate had erred in concluding that there was ‘other good cause’ for the issue of the warrant.
Grounds 3, 4 and 5 — analysis and conclusions
The submissions of the applicant, advanced under ground 3, were based on three premises, namely: first, in determining whether the magistrate erred in concluding that there was ‘other good cause’ for the issue of the warrant, the judge was confined to the reasons stated on the face of the warrant; secondly, the sole reason so stated was ‘Extradition from Western Australia is being sought’; and, thirdly, such a reason could not constitute ‘other good cause’ for the issue of the warrant.
We will consider the validity of the first premise when discussing grounds 4 and 5. However, assuming for the moment that it is correct, we do not accept the second and third premises in the applicant’s submissions.
The second premise — relating to the content of the reason stated on the warrant — is based on an artificial and unjustifiably narrow construction of the warrant, and, in particular of the words ‘Extradition from Western Australia is being sought’. As a matter of ordinary construction, those words must be read in the context of the remainder of the document. Immediately above the warrant, and on the same page, was the section entitled ‘Request for issue of a warrant to arrest’, quoted earlier in these reasons.[20] The basis of that request was that extradition was sought because the accused was permanently residing in Western Australia and he was wanted for arrest to face the Victorian charges.
[20]See [7] above.
Those grounds of the application were the context in which the ‘other good cause’ — ‘Extradition from Western Australia is being sought’ — was included on the warrant. Construed contextually, that description of the cause clearly referred to and incorporated the reason stated by the informant for seeking the issue of the warrant. In short, on its face the warrant described the ‘other good cause’ as being the extradition of the accused who was permanently residing in Western Australia and was wanted for arrest for serious criminal offences committed in Victoria.
We turn, then, to the third premise of the applicant’s submissions. When the warrant is construed correctly, the reasons stated in it were clearly sufficient to constitute ‘other good cause’ for the issue of the warrant. More particularly, it was well open to the magistrate to be satisfied that they did.
As we have earlier discussed, the effect and purpose of the arrest of an accused person necessarily involves, but extends beyond, securing the attendance of that person in court. It also brings the accused person under the control of the court, for the purposes of determining the disposition of that person, pending the hearing of the charges. It was well open to the magistrate to conclude that the arrest of an accused person permanently residing in Western Australia, for extradition to Victoria on charges for serious criminal offences alleged to have been committed by him in Victoria, constituted ‘good cause’ for bringing that accused person under the control of the court.
Turning, then, to grounds 4 and 5 — which underpin the first premise in the applicant’s submissions under ground 3 — we consider that the judge was correct to take into account the statement of reasons given by the magistrate. Contrary to the submissions of the applicant, the statement of reasons was not inconsistent with, and did not involve an impermissible ‘cumulation’ on, the reason stated on the face of the warrant. As already noted, the stated reason was that extradition was sought of an accused person permanently residing in Western Australia, who was wanted for serious criminal offences alleged to have been committed by him in Victoria.
The reasons provided by the magistrate established that, based on the sworn evidence given by the informant (the second respondent), and having viewed still shots taken from the relevant CCTV footage, he had formed the view that there were reasonable grounds for believing that the applicant was involved in that offending. Pursuant to s 10 of the Administrative Law Act, the reasons formed part of the decision and were incorporated in the record of the court. They were not inconsistent with the reasons stated on the warrant. Rather, they supplemented the warrant in the manner described.
For those reasons, grounds 3, 4 and 5 of the application for leave to appeal do not succeed.
Ground 6
Ground 6 is concerned with the judge’s conclusion in respect of ground 1.3 in the originating motion, that the magistrate took into account an irrelevant consideration, namely, that extradition from Western Australia was sought by the second respondent, or failed to take into account the relevant consideration whether the applicant might have answered a summons to appear in Victoria.
In rejecting that ground, the judge concluded as follows:
I am not satisfied, as a matter of fact, that the magistrate failed to take this matter into account. First, the warrant itself identified the potential grounds for a warrant under s 12(5), including whether it was probable that the person will not answer a summons. Further, the nature of the alleged offending, the fact that the plaintiff permanently resides interstate and that police were seeking extradition rather than simply serving a summons interstate, are all matters that could bear on whether or not the plaintiff might answer a summons. I am not persuaded that the magistrate ignored this consideration.[21]
[21]Reasons [96].
Under ground 6 of the present application, counsel for the applicant submitted that, on its proper construction, s 12(5) requires that the magistrate must first address the criteria specified in paragraphs (a) and (b) before resorting to the residual ground of ‘other good cause’ in s 12(5)(c). Counsel contended that to construe s 12(5) otherwise would leave the word ‘other’ with no work to do. Counsel submitted that unless the criteria specified in paragraphs (a) and (b) were considered first, the criteria in paragraph (c) would ‘impermissibly outflank’ those grounds.
Counsel submitted that there was nothing on the face of the warrant which indicated that the magistrate had turned his mind to the criteria contained in paragraphs (a) and (b), before proceeding to consider and apply the ‘other good cause’ ground specified in paragraph (c). That inference was said to be supported by the fact that the box labelled ‘Or for other good cause’ was ticked by the informant before the document was provided to the magistrate, and that the reason for the issue of the warrant was apparently inserted by the informant before the document was presented to the magistrate. Further, the reasons subsequently provided by the magistrate did not indicate that his Honour addressed himself first to any of the grounds specified in paragraphs (a) and (b).
In response, counsel for the respondent submitted that, on its proper construction, s 12 does not require that the magistrate or registrar first enquire whether the accused person will answer a summons. Counsel further contended that, in any event, the judge was entitled to conclude that the magistrate did not ignore the considerations specified in paragraphs (a) and (b). In particular, the judge took into account that the warrant itself identified potential grounds for the issue of a warrant, which included the nature of the alleged offending, the fact that the applicant permanently resides interstate, and that the police were seeking extradition rather than serving a summons interstate. Counsel contended that those matters were a sufficient basis for the judge to conclude that he was not satisfied that the magistrate had ignored the considerations contained in s 12(5)(a) and (b).
Ground 6 — analysis and conclusion
As noted by counsel for the respondent, the submissions advanced by the applicant under ground 6 involve two propositions, namely:
(1)On a proper construction of s 12(5) of the CPA, the issuing court must first consider the grounds specified in paragraphs (a) and (b) before considering the ground contained in paragraph (c), that the warrant is required or was authorised for ‘other good cause’.
(2)The judge should have concluded that the magistrate had not considered the grounds specified in paragraphs (a) and (b) of s 12(5).
In respect of the first proposition, there is no warrant for the construction of s 12(5) contended for by the applicant. The three paragraphs in the subsection, specifying possible grounds for the issue of a warrant, are clearly expressed as alternatives. Counsel for the applicant did not identify any principle of statutory construction, or authority, that supports the contention that all alternatives must be considered in every case, or that those listed first must be considered before later alternatives. They are true alternatives. When — as here — an application for a warrant relies on one of the alternatives, there is no obligation on the issuing court to consider any other alternative.
It follows that, even if the applicant had established that the magistrate did not consider the grounds contained in paragraphs (a) and (b) of s 12(5), the legal validity of the decision to issue the warrant would have been unaffected. For completeness, we should say that we see no error in the judge’s reasons for rejecting that complaint.
Ground 6 therefore fails.
Ground 7 — submissions
Ground 7 is directed to the contention that the magistrate’s decision to issue the arrest warrant was ‘arbitrary or capricious or … disproportionate.’ Counsel for the applicant expressly disavowed reliance on the Wednesbury criterion of review, namely, that the decision was so unreasonable that no reasonable authority could have come to it.[22] Instead, based on the High Court decision in Minister for Immigration & Citizenship v Li,[23] counsel contended that the decision to issue the warrant was invalid because it ‘lacked an evident and intelligible justification’.
[22]Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 233, 229 (Lord Greene MR) (‘Wednesbury’).
[23](2013) 249 CLR 332; [2013] HCA 18 (‘Li’).
Counsel for the applicant relied on what he claimed was the divergence between the reason stated on the face of the warrant, and the later statement of reasons provided by the magistrate. Counsel submitted that in those circumstances it could not be supposed that the magistrate had merely recorded his decision inaptly on the face of the warrant. Counsel contended that, if it was open to the judge to construe the later reasons ‘cumulatively’ with those contained in the warrant, here was such a lack of correspondence between the two as to reveal the absence of a cogent or logical basis for the issue of the warrant.
Further, it was said, the magistrate’s statement of reasons showed that he had incorrectly addressed himself to the prerequisites for a valid arrest without a warrant, specified in s 459(1)(a) of the Crimes Act. The reasons also failed to disclose that the magistrate had turned his mind to the critical question whether ‘other good cause’ had been demonstrated.
In response, counsel for the respondent submitted that these submissions were a departure from the argument presented before the judge, which was primarily based on Wednesbury. In any event, the matters relied on did not demonstrate that the decision lacked an evident or intelligible justification.
Ground 7 — analysis and conclusion
Having reviewed the written submissions and the transcript of argument before the judge, we are satisfied that the submissions now advanced by the applicant are consistent with those relied on at first instance. In his reasons, the judge specifically considered the decision of the High Court in Li[24] in rejecting the submissions advanced on behalf of the applicant. His Honour concluded that it was reasonably open to the magistrate to issue the warrant, in light of the seriousness of the charge, the fact that the applicant was interstate, that he had no apparent connection to Victoria, and that the magistrate had been given a narrative of the offence, upon which he was entitled to conclude that there were reasonable grounds for believing that the persons named in the warrant were involved in the alleged offending.[25]
[24]Reasons [100].
[25]Ibid [105].
At the risk of repetition, the starting point for considering ground 7 consists of the reasons contained on the face of the charge-sheet and warrant for arrest. As already discussed, on its proper construction the notation ‘Extradition from Western Australia is being sought’ referred to and incorporated the reasons specified in the section of the warrant entitled ‘Request to issue a warrant for arrest’. In other words, the reasons stated on the document, for the issue of the warrant, included that the accused was permanently residing in Western Australia, that he was wanted for arrest for serious offences of aggravated burglary and extortion with intent to inflict injury, and that his extradition from Western Australia was sought in order that he might answer those charges.
The subsequently provided reasons of the magistrate elaborated on the content of the warrant, by explaining that before the issue of the warrant, the informant had, on oath, provided to the magistrate a narrative of the circumstances of the alleged offending, and the magistrate had viewed CCTV stills, upon which he had concluded that there were reasonable grounds for believing that the applicant was implicated in that offending. Contrary to the applicant’s arguments, the magistrate’s reasons thus bore a relevant and cogent relationship with the ground stated on the face of the warrant to arrest.
Further, we reject the contention that the magistrate incorrectly addressed himself to the requirements for a valid arrest without warrant under s 459(1)(a) of the Crimes Act. As we have discussed, one of the factors taken into account by the magistrate was that the applicant was alleged to have been involved in the commission of serious criminal offences in Victoria. It was appropriate for the magistrate to take into account whether there were sufficient grounds upon which those charges were brought against the applicant, in considering the gravity of the alleged offending as a relevant factor in determining whether there was ‘other good cause’ demonstrated for the issue of the warrant.
Based on the recent decision of the Court of Appeal in New South Wales in Doyle v Commissioner of Police,[26] counsel for the applicant contended that the format in which the document was presented to, and signed by, the magistrate — with boxes already ticked — demonstrated that the magistrate had not brought an independent mind to bear on whether ‘other good cause’ had been demonstrated. We do not accept that proposition. The circumstances, and the legislation under consideration, in Doyle were quite different from the circumstances of the present case.
[26][2020] NSWCA 11 (‘Doyle’).
In Doyle, the Court of Appeal was concerned with the validity of a search warrant. The Court concluded, by way of inference from a number of particular circumstances, that in issuing the warrant the issuing officer had not brought any real attention to bear on the application for the warrant. One of the principal considerations was the failure of the issuing officer to comply with a provision of the legislation that required the officer to make a record of ‘all relevant particulars’ he or she had relied on.[27] After considering a number of circumstances specific to the case, the Court inferred that the magistrate had failed to properly consider the application for the warrant.[28]
[27]Ibid [66]–[69] (Leeming, Payne JJA and Simpson AJA).
[28]Ibid [73]–[74].
The circumstances of the present case are clearly distinguishable. As we have noted, the face of the warrant itself contained sufficient and cogent reasons from which the magistrate might conclude that there was ‘other good cause’ demonstrated for the issue of the warrant. The fact that parts of the warrant form had already been filled in by the informant does not support the inference that the magistrate did not give proper consideration to the issue of the warrant. The reasons later provided by the magistrate demonstrated he had directed his mind to a relevant and important consideration, namely, whether there was a sufficient basis upon which to believe that the applicant was implicated in the serious offending in respect of which the arrest warrant was sought.
For those reasons, ground 7 must fail.
Ground 8 — analysis and conclusion
Ground 8 is directed to the rejection by the judge of the contention that the incorporation of the charge-sheet and the arrest warrant into a single document was impermissible. This ground may be disposed of shortly.
The statutory provisions referred to in the ground do not expressly, or by implication, require that the charge-sheet be contained in a separate document from the warrant for arrest. Section 5 of the CPA provides for the commencement of a criminal proceeding — relevantly, by ‘filing or signing a charge-sheet’ in accordance with s 6. That section in turn specifies three different modes of commencement in the Magistrates’ Court; s 6(3) requires that a charge-sheet be in writing and ‘signed by the informant personally’; and s 6(4) provides that the informant may include a request for a committal proceeding in the charge-sheet. There is nothing in any of those provisions to suggest that the charge-sheet may not also contain or include any other form of process.
Counsel for the applicant submitted that, as s 6(4) gives specific and limited authorisation for additional matters to be included in a charge sheet, the combination of any other document with the charge-sheet is implicitly prohibited. We reject that submission. When s 6(4) is read in context, there is no occasion to invoke the statutory canon of construction relied on by the applicant — expressio unius est exclusio alterius. All that s 6(4) does is promote administrative efficiency, by drawing the informant’s attention to the question of whether a committal proceeding is to be requested and by facilitating the communication of such a request via the charge-sheet. It is not a provision concerned with prescribing (or limiting) the content of a charge-sheet. This case further illustrates why the use of this maxim has been treated by the courts with some caution.[29]
[29]See, eg, Rylands Bros (Aust) Limited v Morgan (1926) 27 SR (NSW) 161, 168 (Long Innes J); A-G (NSW); Ex rel Franklins Stores Pty Ltd v Lizelle Pty Ltd [1977] 2 NSWLR 955, 963 (Reynolds JA).
The passage in the judgment of Cavanough J in Guss v Commissioner of Taxation,[30] relied on by the applicant, provides no support for ground 8. His Honour went no further than to ‘doubt’ whether it was ‘appropriate’ for the rules to prescribe a combined form of charge-sheet and warrant to arrest. His Honour further noted that the question had been the subject of only brief discussion during oral argument and that ‘nothing turns on it’.[31]
[30][2015] VSC 259.
[31]Ibid [13].
It follows that ground 8 must fail.
Summary of conclusions
For the foregoing reasons, the application for leave to appeal must be refused.
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SCHEDULE OF PARTIES
| PETER ANDREW FIORE | Applicant |
| and | |
| THE MAGISTRATES’ COURT OF VICTORIA | First Respondent |
| JOANNE POYNTON | Second Respondent |
| CHIEF COMMISSIONER OF VICTORIA POLICE | Third Respondent |
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