Police v Stacy
[2016] SASC 54
•22 April 2016
SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
POLICE v STACY
[2016] SASC 54
Judgment of The Honourable Justice Parker
22 April 2016
GAMING AND LIQUOR - LIQUOR - LIQUOR OFFENCES - OTHER MATTERS
APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - POINTS AND OBJECTIONS NOT TAKEN BELOW - WHEN NOT ALLOWED TO BE RAISED ON APPEAL - QUESTIONS NOT RAISED ON PLEADINGS OR IN ARGUMENT - GENERALLY
CRIMINAL LAW - PROCEDURE - ADJOURNMENT, STAY OF PROCEEDINGS OR ORDER RESTRAINING PROCEEDINGS - STAY OF PROCEEDINGS - ABUSE OF PROCESS - IN GENERAL
Appeal against an order of a magistrate granting a permanent stay of the prosecution of the respondent for the offence of breaching a barring order under s 125C of the Liquor Licensing Act 1997 (the Act). The respondent was subject to a series of barring orders issued on the basis that he was a known associate of an outlaw motorcycle gang and there was a reasonable apprehension of danger to patrons and staff of licensed venues. There was some temporal overlap in the operation of the orders. The barring order in force at the time of the alleged offence prevented the accused from entering some 1,400 licensed venues, including hotels, cafes and restaurants. The magistrate found that the barring order was absurdly wide and unreasonably oppressive, unfair and unjust, lacked proper grounds and was made for a collateral purpose. The magistrate said that it was questionable whether the multiple overlapping orders were valid. The magistrate ordered that the prosecution be stayed to prevent an abuse of process. On appeal counsel for the police argued that the magistrate had erred by purporting to conduct a review of the barring order rather than considering whether the prosecution amounted to an abuse of process. The magistrate was not entitled to conduct a collateral review of the basis for the issue of the barring order. The circumstances before the magistrate did not justify a stay. The accused should not be permitted to collaterally challenge the validity of the barring order on the appeal as that point had not been taken at trial. In any event no proper grounds of invalidity were alleged.
The appeal was upheld and the matter remitted for hearing by another magistrate. The following findings were made:
(1) Section 125B(1)(g) of the Act does not require that the subject of a barring order must previously have placed at risk the safety and welfare of patrons and staff at each of the licensed premises specified in the order. For that reason the police are entitled to consider the past behaviour of the person and those with whom they associate when they decide the scope of a proposed order.
(2) It is apparent from the authorities that a collateral challenge may be made to an administrative decision (as distinct from a legislative action) on the basis that it is said to be invalid on its face or not supported by the relevant Act.
(3) It would occasion unfairness to the prosecution of the type identified by the High Court in Whisprun to allow on the appeal a collateral challenge based on ultra vires in the broad sense or Wednesbury unreasonableness.
(4) It would not be unfair to the prosecution in the Whisprun sense to permit a collateral challenge of the barring order on the basis that it was invalidated by temporal overlap with other barring orders or that the order was invalid on its face. It would be contrary to the interests of justice not to consider an alleged defect of that type.
(5) The barring order was not invalidated by temporal overlap as it had impliedly varied or revoked the previous order.
(6) The barring order was not invalidated by the limited reasons stated on the face of the order as there is no requirement in s 125B of the Act that the basis for the issue of the order must be stated on its face. In any event, the information on the face of the order was sufficient.
(7) The magistrate erred in finding that the barring order was absurdly wide and unreasonably oppressive, unfair and unjust, lacked proper grounds and was made for a collateral purpose as the magistrate failed to recognise correctly the operation of s 125B of the Act and effectively rejected police evidence that had not been challenged.
(8) There was no basis for the magistrate to conclude the prosecution was an abuse of process.
Liquor Licensing Act 1997 s3, s3(1)(f), s21, s125B, s125B(1), s125B(1)(g), s125B(4), s125C, s125D, s126, s128; Supreme Court Civil Rules r200(2), referred to.
Ousley v The Queen (1997) 192 CLR 69; Whisprun Pty Ltd v Dixon (2003) 200 ALR 447; Hinton Demolitions Pty Ltd v Lower (No 2) (1971) 1 SASR 512; Fountain Christian School Inc v Harrington (1990) 53 SASR 361; Question of Law Reserved on Acquittal (No 5 of 1999) (2000) 76 SASR 356; Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; Jacobs v OneSteel Manufacturing Pty Ltd (2006) 93 SASR 568, applied.
R v Papadopoulos (2010) 108 SASR 124; Dupas v The Queen (2010) 241 CLR 237, discussed.
Director of Public Prosecutions v George (2008) 102 SASR 246; Williams v Spautz (1992) 174 CLR 509; Batistatos v Roads and Traffic Authority of New South Wales (2006) 226 CLR 256; Ridgeway v The Queen (1995) 184 CLR 19; R v Tilley (1992) 109 FLR 155; R v Mohi (2000) 78 SASR 55; Moti v The Queen (2011) 245 CLR 456; X7 v Australian Crime Commission (2013) 248 CLR 92; Jago v District Court of New South Wales (1989) 168 CLR 23; R v Jacobi (2012) 114 SASR 227; Walton v Gardiner (1992) 177 CLR 378; Herron v McGregor (1986) 6 NSWLR 246; R v Vuckov (1986) 40 SASR 498; Carbines v Powell (1925) 36 CLR 88; Australian Boot Trade Employees’ Federation v Whybrow & Co (1910) 11 CLR 311; Weinal v Parsons (1994) 178 LSJS 48, considered.
WORDS AND PHRASES CONSIDERED/DEFINED
"collateral challenge, any other reasonable ground"
POLICE v STACY
[2016] SASC 54
Magistrates Appeal: Criminal
PARKER J: This is an appeal against an order of a magistrate granting a permanent stay of the prosecution of the respondent, John Stacy, for the offence of breaching a barring order under s 125C of the Liquor Licensing Act 1997 (the Act). For the reasons that follow, I uphold the appeal by the police and will order that the matter be remitted for hearing by another magistrate.
The legislative scheme
Division 3 of Part 9 of the Act is entitled “Power to Bar”. The Division provides for three discrete classes of barring order, ie a licensee barring order under s 125, a Commissioner of Police barring order under s 125A and a police barring order under s 125B. At the relevant time, Mr Stacy was ostensibly the subject of a police barring order under s 125B.
The objects of the Act are stated in s 3 as follows:
3—Objects
(1) The object of this Act is to regulate and control the sale, supply and consumption of liquor for the benefit of the community as a whole and, in particular—
(a) to encourage responsible attitudes towards the promotion, sale, supply, consumption and use of liquor, to develop and implement principles directed towards that end (the responsible service and consumption principles) and minimise the harm associated with the consumption of liquor; and
(b) to further the interests of the liquor industry and industries with which it is closely associated—such as the live music industry, tourism and the hospitality industry—within the context of appropriate regulation and controls; and
(c) to ensure that the liquor industry develops in a way that is consistent with the needs and aspirations of the community; and
(d) to ensure as far as practicable that the sale and supply of liquor contributes to, and does not detract from, the amenity of community life; and
(e) to encourage a competitive market for the supply of liquor; and
...
(2) In deciding any matter before it under this Act, the licensing authority must have regard to the objects set out in subsection (1).
On 20 April 2013 a new paragraph (f) was added to s 3(1). This provides that it is an object of the Act that the sale and supply of liquor occurs in such a manner as to minimise the risk of intoxication and associated violent or anti-social behaviour. Paragraph (f) was not in force when the relevant barring order was served on Mr Stacy on 4 December 2012.
The provisions of Division 3 of Part 9 relevant to this appeal are as follows:
125B—Police officer barring orders
(1)Subject to this section, a police officer may, on the authorisation of a senior police officer, by order (a barring order) served on a person, bar the person from entering or remaining on—
(a) specified licensed premises; or
(b) licensed premises of a specified class; or
(c) licensed premises of a specified class within a specified area; or
(d) all licensed premises within a specified area,
for a specified period not exceeding any applicable limit fixed by this section—
(e)if the police officer is satisfied that the welfare of the person, or the welfare of a person residing with the person, is seriously at risk as a result of the consumption of alcohol by the person; or
(f)if the person commits an offence, or behaves in an offensive or disorderly manner, on, or in an area adjacent to, the licensed premises; or
(g)on any other reasonable ground.
(2)A police officer may, on the authorisation of a senior police officer, vary or revoke an order under this section barring a person from premises by subsequent order served on the person.
(3) The following provisions apply in relation to an order under this section:
(a)in the case of a barring order made on the grounds referred to in subsection (1)(e)—the order remains in force for an indefinite period, or the period specified in the order;
(b)in the case of a barring order made on the grounds referred to in subsection (1)(f) or (g) and authorised by a senior police officer of or above the rank of Inspector—the order remains in force—
(i) if the person has not previously been barred under this section—for the period specified in the order (which may not exceed 3 months); orLiquor Licensing Act 1997—20.12.2015 Part 9—Special powers and enforcement Division 3—Power to bar 90 This version is not published under the Legislation Revision and Publication Act 2002 [18.12.2015]
(ii) if the person has on 1 previous occasion been barred under this section—for the period specified in the order (which may not exceed 6 months); or
(iii) if the person has on at least 2 previous occasions been barred under this section—for an indefinite period or the period specified in the order;
(c)in the case of a barring order made on the grounds referred to in subsection (1)(f) or (g) and authorised by a senior police officer of or above the rank of Sergeant or in charge for the time being of a police station—the order remains in force for a period specified in the order (which may not exceed 72 hours).
(4)An authorisation to issue a barring order under this section may be granted orally or in writing but a written record must be kept of—
(a)the name, rank and identification number of the senior police officer giving the authorisation; and
(b)the name, rank and identification number of the police officer requesting the authorisation; and
(c) details of the conduct giving rise to the request; and
(d) the following details relating to the barring order:
(i) the name of the person barred under the order; and
(ii) the licensed premises from which the person has been barred under the order; and
(iii) the grounds on which the issuing of the order is authorised; and
(iv) the period for which the order remains in force.
(5)For the purposes of subsection (2), a condition or limitation under this section in relation to the making of a particular barring order extends to a variation or revocation of the order under that subsection.
(6) In this section—
senior police officer means—
(a)in the case of a barring order that is to be made on the grounds referred to in subsection (1)(e)—a police officer of or above the rank of Inspector;
(b)in the case of a barring order that is to be made on the grounds referred to in subsection (1)(f) or (g)—
(i) if the order is to be made for a period exceeding 72 hours—a police officer of or above the rank of Inspector; or
(ii) in any other case—a police officer of or above the rank of Sergeant or in charge for the time being of a police station.
125C—Offences
(1)A person who enters or remains on licensed premises from which he or she is barred under this Subdivision is guilty of an offence.
Maximum penalty: $1 250.20.12.2015—Liquor Licensing Act 1997 Special powers and enforcement—Part 9 Power to bar—Division 3 [18.12.2015] This version is not published under the Legislation Revision and Publication Act 2002 91
(2)A licensee, a responsible person for licensed premises, or an employee of the licensee, who knows or ought reasonably to know that a person has been barred from licensed premises under this Subdivision and who allows a person to enter or remain on those premises, is guilty of an offence.
Maximum penalty: $1 250.
125D—Evidence
(1)In proceedings for an offence against this Subdivision, a certificate apparently signed by a police officer of or above the rank of Inspector stating that a person was barred from licensed premises under this Subdivision for the period specified in the certificate will be accepted, in the absence of proof to the contrary, as proof of the matters stated in the certificate.
(2)In proceedings for an offence against this Subdivision, a certificate apparently signed by a police officer of or above the rank of Inspector stating—
(a) that an authorisation under section 125B was given; and
(b)that the authorisation authorised the making of an order under this Subdivision; and
(c) the grounds on which the authorisation was given,
will be accepted, in the absence of proof to the contrary, as proof of the matters stated in the certificate.
...
126—Orders
(1)An order under this Division must be in writing in a form prescribed by regulation.
(1a)If a person has been barred from premises by order under Subdivision 3, the relevant licensee must, within 14 days of the service of the order, be provided with—
(a) a copy of the order; and
(b) information that identifies the person,
(but a failure to comply with this subsection does not affect the operation of the order).
(3)A copy of the order must be kept at the licensed premises to which the order relates.
...
128—Review of orders
(1)A person in respect of whom one or more orders have been made under this Division barring the person from premises—
(a) for a period exceeding 1 month; or
(b)for periods exceeding 1 month in aggregate during a period of 3 months,
may apply to the licensing authority for a review of the order under which the person is barred from the premises.
(1a)The licensee of the premises must be given reasonable notice by the licensing authority of the hearing of an application under this section and is entitled to appear at the hearing personally or by a representative.
(2)The licensing authority may, on the hearing of an application under this section, confirm, vary or revoke the order.20.12.2015—Liquor Licensing Act 1997 Special powers and enforcement—Part 9 Power to bar—Division 3 [18.12.2015] This version is not published under the Legislation Revision and Publication Act 2002 93
(2a)If, on the hearing of an application under this section in relation to an order under which the applicant has been barred from premises for an indefinite period or a period exceeding 6 months, the licensing authority is of the opinion that it is appropriate to vary the order so that the person is barred from entering or remaining on the premises until further order of the Commissioner, the licensing authority may so vary the order.
(2b)When the Commissioner is determining whether to make an order under subsection (2a), the Commissioner must have regard to whether the person has undertaken a behaviour management course, obtained medical assistance or taken other action to address the problem.
(3)A decision of the Commissioner under this section is not subject to review.
(4)The licensing authority has an absolute discretion to suspend an order pending determination of an application for review of the order.
(5) In this section—
licensing authority means—
(a)if the order was made barring the person from premises for an extended period approved by the Commissioner under section 125(5)(b)(i) or (ii)—the Court;
(b) in any other case—the Commissioner.
I also note that s 21 provides for the Commissioner to refer particular proceedings or matters for hearing and determination by the Licensing Court. That would include an application under s 128. Such a referral may be made where a proceeding involves a question of substantial public importance, a question of law or any other matter that should, in the public interest or in the interests of a party, be heard and determined by the Court.
Background
The police allege that at about 10.55 pm on 20 April 2013 Mr Stacy was present at the Savvy Bar Lounge at 149 Waymouth Street, Adelaide. His presence in those licensed premises was said to be contrary to a barring order served upon him by police on 4 December 2012. He was then charged on complaint with the summary offence of breaching a barring order contrary to s 125C of the Act. That offence is punishable by a fine of up to $1,500.
The barring order served upon Mr Stacy on 4 December 2012 prohibited him from entering or remaining on a great many licensed premises specified in the order, including the Savvy Bar. The underlying basis for the issue of the order was Mr Stacy’s membership of the Hells Angels Motorcycle Club.
Mr Stacy has been the subject of a series of barring orders made by police under s 125B of the Act. The orders were expressed to operate for the periods as follows:
·3 June 2011 to 2 September 2011
·9 March 2012 to 8 June 2012
·5 July 2012 to 4 January 2013
·23 November 2012 to 23 May 2013
·20 April 2013 to 20 April 2014
While nothing turns on the point in this case, I note that s 125B refers to barring by order “served on a person”. Thus, an order has no effect until it is served on the person named therein. The order dated 23 November 2012 was served upon Mr Stacy on 4 December 2012 and thus took effect from that time.
There was a period of about one month between 4 December 2012 and 4 January 2013 when Mr Stacy was ostensibly subject to two barring orders and a further period in April and May 2013 when he was also apparently subject to two orders. Most significantly, the order dated 5 July 2012 had not expired when the further order was served on 4 December 2012, being the order that Mr Stacy was said to have breached. That issue was important in the appeal and I will return to it later.
The barring order made on 5 July 2012 applied to about 250 licensed premises. They were primarily located at Adelaide, Glenelg, North Adelaide and in the outer northern suburbs.
The barring order made on 23 November 2012, and served on 4 December 2012, barred Mr Stacy from attending approximately 1,400 licensed premises. The list of premises extended over 54 pages. The list was prefaced with the comment that it included “all metro hotels, selected restaurants, special circumstances, entertainment venues and others”. In addition to every hotel in the metropolitan area and some elsewhere, the list included a wide variety of licensed premises, eg the Adelaide Airport, a number of sporting venues, several hairdressing salons, a bakery, function centres, billiard and eight ball centres and so forth.
The Police Department form, PD500, used to give notice of a barring order, provides for the ticking of a box to indicate the grounds upon which the order is being issued. The grounds provided are behaviour, offence, welfare or other. Those choices reflect the different grounds provided for in paragraphs (e), (f) and (g) of s 125B(1). The box marked “other” was ticked in the notice dated 5 July 2012 and also in that dated 23 November 2012. Thus, the police relied upon s 125B(1)(g) to make those orders, ie “any other reasonable ground”.
The orders dated 5 July 2012 and 23 November 2012 were each endorsed with the following remarks:
This person is a known member or associate of an outlaw motorcycle gang and having regard to past behaviour and problems experienced at licensed premises, it is a reasonable apprehension of the South Australia Police that a danger to patrons and staff is likely to result by allowing entry into the premises listed on the attached annex.
Evidence before the magistrate
An affidavit sworn by Detective Sergeant Heath Lienert of the Crime Gangs Task Force on 26 January 2013 for use in proceedings in the Licensing Court relating to members of the Hells Angels other than Mr Stacy was received in evidence by the Magistrates Court. Sergeant Lienert set out his extensive experience dating from 2006 in relation to outlaw motorcycle gangs, their activities and membership. According to the evidence of Sergeant Lienert, the common characteristics found amongst outlaw motorcycle gangs and their members included: a strict code of silence; the acceptance of violence; loyalty; strict obedience to the club hierarchy; disregard for established social norms and for law enforcement authorities and use of intimidation. Sergeant Lienert also described the organisational hierarchy of the Hells Angels, the club initiation processes and the differing regalia worn at the several levels within the club hierarchy.
Sergeant Lienert also referred to 13 separate incidents allegedly involving the Hells Angels in the period from May 2011 to November 2012. Most of those incidents allegedly involved conflict with members of other motorcycle clubs. Four of those incidents had involved the use or presence of firearms while three incidents had involved arson or attempted arson. Nine of the incidents had occurred in licensed premises. Three of those premises were located in Waymouth Street, two in Hindley Street and the others at Light Square, North Terrace and Glenelg. Other incidents had occurred at a public sporting event, at a tattoo shop, at a service station, at what appears to be a hydroponics shop and at a panel beating business. The remainder had occurred at private houses.
Sergeant Lienert also referred to a further five serious incidents on licensed premises that allegedly involved conflict between members of outlaw motor cycle gangs in the period from October 1999 until December 2012. Members of the Hells Angels were allegedly involved on two of those occasions. The incidents had occurred in Rundle Street, at AAMI Stadium, Light Square, North Adelaide and Holden Hill. The licensed premises comprised a sporting stadium, three restaurants and a nightclub. One incident involved the murder of three persons, allegedly by members of the Hells Angels, three other incidents involved the discharge of firearms (with four persons being wounded on one of those occasions) and there was one substantial affray.
Sergeant Lienert referred to two incidents in which Mr Stacy was allegedly involved. The first related to an incident at the Live nightclub in Light Square at about 11.30 pm on 30 June 2012 when a group of Hells Angels, including Mr Stacy, entered the premises by physically pushing past security and were subsequently removed by police. Mr Stacy was also allegedly involved in an incident outside the Marble Bar in Waymouth Street at 1.30 am on 1 July 2012 when he and a number of other persons alleged to be members and associates of the Hells Angels were involved in what was described as “an aggressive verbal altercation” with associates of the Finks. I consider that I can take judicial notice of the fact that both the Marble Bar in Waymouth Street and the Live nightclub in Light Square are located quite close to the Savvy Bar Lounge in Waymouth Street.
Annexed to the outline of argument filed by Mr Stacy’s solicitor were documents provided in response to a subpoena issued to the Commissioner of Police seeking material relevant to the issue of the barring order. It does not appear that this material was admitted into evidence by the magistrate. While some of the documents had been significantly redacted, in essence this material replicated the content of the affidavit sworn by Detective Sergeant Lienert.
An affidavit sworn by Mr Stacy on 20 January 2015 was admitted into evidence by the magistrate. He deposed that after being served with a barring order on 12 May 2013 he had sought a review of the order by the Liquor and Gambling Commissioner. He had appeared before the Commissioner in about June or July 2013 and had been directed to submit to the police within three weeks a list of those licensed premises that he would like to be able to attend. He then met with two officers from the Crime Gangs Task Force and provided them with the names of some licensed premises that he would like to be able to attend. These premises were restaurants, and not bars or clubs, and were located outside the Adelaide CBD. The officers allegedly told him that he was wasting his time and they would never agree to let him attend those premises. They also allegedly said that if they approved his request they would have to approve everyone’s.[1] He did not attend any further hearings before the Commissioner because of the attitude taken by the police officers and did not proceed with the review of the barring order.
[1] This apparently meant that police would oppose such an application before the Commissioner or the Licensing Court.
The information in Mr Stacy’s affidavit relates solely to the review of the order served upon him on 12 May 2013. That was apparently the order made by police on 20 April 2013. The order that Mr Stacy is alleged to have breached by being present at the Savvy Bar Lounge on 20 April 2013 is that served upon him on 4 December 2012. He did not apply for review of that order.
Defence submissions before the magistrate
Because the scope of the matters raised before the magistrate was an issue on the appeal, I will refer in some details to the parties’ submissions.
At the hearing before the magistrate counsel for Mr Stacy (not being the counsel who appeared on the appeal) provided a detailed written summary of her argument. She submitted that the prosecution was an abuse of process in that police had continuously issued Mr Stacy with barring orders for ulterior purposes and so as to cause vexation and oppression. The police could not properly consider that there was “a reasonable apprehension of South Australia Police that a danger to patrons and staff is likely to result” from allowing Mr Stacy entry into each and every licensed premises included on the extensive list attached to the barring order. Thus, the purpose of the barring order was to inhibit unduly the liberties of Mr Stacy.
Counsel submitted that the making of the barring order was not in accordance with the objects of the Act which she summarised as being to “minimise the risk of intoxication and associated violent or anti-social behaviour”. Neither the police nor the Court could be satisfied that there was a reasonable apprehension of danger to the patrons and staff of each and every one of the premises listed within the order. Furthermore, the list of premises from which Mr Stacy was barred was not a class of premises within the ambit of s 125B of the Act. The use by police of the barring order procedure, followed by prosecution for an alleged breach, was said to be a clear use of the Court’s process for an improper purpose. Therefore a stay should be granted.
Police submissions before the magistrate
The police acknowledged that the Magistrates Court had power to grant a permanent stay to prevent an abuse of process but that should be the last resort. Mr Stacy’s complaints about the validity of the barring order and police conduct could appropriately have been addressed by an application under s 128 of the Act for a review of the barring order. Mr Stacy had not done so although he had made an unsuccessful application to review an earlier order.
The police submitted that the Magistrates Court should not review the validity of the barring order as that matter was appropriately dealt with under s 128. The circumstances were not so exceptional as to warrant the grant of a stay.
An affidavit sworn by the police prosecutor for use in this appeal stated that Mr Stacy had not sought a review under s 128 of the Act of the order dated 23 November 2012.[2] The magistrate indicated at a preliminary stage that she was contemplating staying the prosecution as an abuse of the process of the Court. Her Honour posed a series of questions and suggested that the prosecutor might consider adducing evidence on those points. The questions included: the basis upon which the prosecution said that Mr Stacy was a member of an outlaw motorcycle gang; why it was said that his membership of such a gang provided a basis for the order, particularly in the absence of any offence; why did the order apply to such a large number of venues, particularly when compared to the much smaller number of venues to which such orders usually applied; why did the order cover locations, such as the Adelaide Airport terminal, which were themselves unlicensed rather than specifying the licensed premises within those sites; why did Mr Stacy have to take steps to avoid walking on a footpath through a licensed outdoor dining area; what was the factual matrix of the order, and in particular, what was the communication between Crime Gangs Taskforce investigators and Mr Stacy.
[2] As noted at [21] he did apply for, but abandoned, an application to review a subsequent barring order.
The prosecutor stated that he attempted to answer some of the magistrate’s questions. The matter was then adjourned for the prosecution to consider whether or not evidence would be called. The prosecutor stated that he was instructed not to make any submissions about the questions raised by the magistrate as they were not considered to be relevant to the prosecution of Mr Stacy. He relied upon the evidentiary aid in s 125D of the Act and submitted that the merits of the barring order could not be reviewed in the Magistrates Court.
The magistrate’s reasons
The magistrate noted that the affidavits filed by the police had revealed systemic violent altercations, some involving firearms and other weapons, between members of rival outlaw motorcycle gangs during the period in which Mr Stacy was subject to barring orders. Her Honour also noted that the protection of customers and staff, minimisation of harm and preservation of public order and safety were all key elements of the Act.
The magistrate then referred to the second reading speech made in the Legislative Council by the relevant Minister, the Hon Gail Gago MLC, when s 125 was enacted in 2008. The Minister had noted that licensees had informed police that they were reluctant to issue barring orders to members of outlaw motorcycle gangs because they were frightened and intimidated. The Minister also noted that police were sometimes concerned as to the safety and welfare of customers in licensed premises but had no power, in the absence of an offence, to deal with undesirable patrons.
Her Honour also referred to comments made in the Legislative Council debate by the Hon RD Lawson QC MLC, an Opposition spokesperson. Mr Lawson noted that the Law Society had expressed concern that the Commissioner of Police might bar a person from all licensed premises in the State so that they may be prohibited from entering sporting venues, restaurants and cafes where there may be no good reason to prevent their entry. Mr Lawson indicated that while he did not dismiss the concerns of the Law Society, he thought that it was somewhat far-fetched to imagine there would be state-wide barring orders in circumstances where there was no necessity for that.
After referring to the parliamentary debates the magistrate canvassed some of the leading authorities concerning abuse of process. She also referred to a decision of the Full Court in R v Papadopoulos.[3] In that case the Full Court had considered whether a trial judge in the District Court should have recused himself on the ground of apprehended bias as he had previously presided in the Licensing Court over a review under s 128 of the Act in relation to a barring order made against the defendant on the basis of his membership of the Hells Angels. The focus of the Full Court’s reasons was on the question of apprehended bias rather than the barring order. Nevertheless, it was necessary for the Full Court to refer to the basis upon which the barring order had been made.
[3] (2010) 108 SASR 124.
Her Honour referred to some of the evidence before the Licensing Court in Papadopoulos about the alleged activities of Hells Angels members and the conclusion by the licensing judge that the evidence had justified the police decision to issue the barring order even though the conduct of the appellant would not, of itself, have justified the order.
The magistrate said that it was questionable whether the multiple overlapping orders were valid. Arguably, the order made on 23 November 2012 should have been revoked before the further order was issued on 20 April 2013 or, alternatively, the former order should have been varied and the latter not issued.
Her Honour found that the continuous issue of barring orders against Mr Stacy by the police was for a collateral purpose and not within the scope of the Act. Her Honour made the observation that the licensed premises in which violent altercations had occurred between rival outlaw motorcycle gang members appeared to be premises of a certain type found in Hindley Street and particular city nightclubs and bars.
After noting that a stay can only be granted in the most exceptional circumstances and with caution, her Honour found that the barring orders imposed on Mr Stacy were absurdly wide in scope and for that reason, combined with the contemporaneous nature of some of the orders, they were unreasonably oppressive and unfair. They were also unjust due to their broad scope. Mr Stacy was prevented from frequenting hotels, suburban cafes and restaurants, the football and many other venues. There were not proper grounds to find that the Commissioner of Police could be satisfied that there would be a reasonable apprehension of a danger to patrons and staff should Mr Stacy be allowed entry to each and every one of the premises listed on the 55 page annexure to the barring order. On that basis her Honour found that it was an appropriate to exercise her discretion to prevent an abuse of process. She ordered that the prosecution be stayed.
Further evidence on the appeal
At the conclusion of the appeal hearing I asked counsel to inform the Court what information was before the officer when the relevant barring order had been made. An affidavit sworn by Superintendent Patterson of SA Police was filed in response to that request. No objection was made on behalf of Mr Stacy to the Court receiving and relying on that further evidence.
Superintendent Patterson deposed that in November 2012 he held the rank of Chief Inspector and was the officer in charge of the Licensing Enforcement Branch within SA Police. At that time he was requested to authorise a large number of barring orders under s 125B of the Act in relation to members of outlaw motorcycle gangs. He stated that he was provided with information relevant to each person in relation to whom a barring order was sought. In each case he had considered the content of the request and the supporting documentation and if he was satisfied that the requirements of s 125B were met he issued an order.
Superintendent Patterson also deposed that in addition to the material relating specifically to the individual subjects of proposed orders, he also had information in his possession that was relevant to all of the applications made to him for barring orders in late November 2012. He had read that information carefully and had intimate knowledge of it due to his role as officer in charge of the Licensing Enforcement Branch.
Although Superintendent Patterson indicated that he now had no independent recollection of the documents relating generally to the making of barring orders, he believed that this material consisted of a Commissioner’s briefing paper dated 10 January 2011 about potential violence between the Finks and the Hells Angels motorcycle clubs, a further Commissioner’s briefing paper dated 20 January 2012 about the same issue, an Assistant Commissioner’s briefing paper dated 9 November 2012, a Commissioner’s briefing paper dated 18 November 2012 about conflict between the Hells Angels and the Finks at the Adelaide Arena on 17 November 2012 and a summary of what he described as Finks OMCG/66 Crew and Hells Angels reported incidents dated 22 November 2012. I note that each of these documents (albeit in some cases with significant redaction) had been supplied to the defence in response to a subpoena and was annexed to the outline of argument filed by Mr Stacy’s solicitor (see paragraph 20 above).
Superintendent Patterson also stated that on 23 November 2012 he had authorised the issue of a barring order to Mr Stacy under s 125B. He believed that he would have seen and considered at that time a copy of Mr Stacy’s criminal record and a police ancillary report numbered 13/G79609. That ancillary report was included in the documents supplied to the defence and annexed to the outline of argument. The ancillary report refers to an acknowledgment of Mr Stacy’s membership of the Hells Angels.
A document entitled Record of Senior Police Officer Authorisation signed by Chief Inspector Patterson (as he then was) indicated that the details of the conduct giving rise to the request for the making of a barring order were as follows:
Recent escalating violence between the Hells Angels OMCG and the Finks OMCG has given rise to a reasonable apprehension that there is a danger to patrons and staff by allowing entry of members of these OMCG’s into the premises listed on the annexure attached. STACY has been confirmed as a member of the Hells Angels. STACY has recent ancl reports showing association with other Hells Angels who have history of firearms ancl 13/G79609 refers.
The Record of Senior Officer Authorisation also included the following material under the heading “Additional Notes”:
Copy of recent incidents of violence between Hells Angels and Finks OMCG’s attached.
Copy of criminal history attached
3 x previous police barring orders issued (2 x expired 1 x active)
The appellant’s submissions on the appeal
Counsel for SA Police submitted that the magistrate had erred by purporting to conduct a review of the barring order rather than considering whether the prosecution amounted to an abuse of process. It was submitted that the magistrate had no jurisdiction or power to review the barring order. Mr Stacy was entitled to seek review of the order by the Liquor and Gambling Commissioner under s 128 of the Act but had not done so.
Counsel also submitted that in the particular circumstances the magistrate was not entitled to conduct a collateral review of the basis for the issue of the barring order. Her Honour was also not entitled to rule on the sufficiency of the material considered by the decision-maker prior to the issue of the barring order.
It was further submitted that the magistrate had apparently reasoned that because she considered that the barring order was oppressive and unjust, and that there were no proper grounds for its issue, it would amount to an abuse of process to allow the proceedings to continue. It was further submitted that the approach adopted by the magistrate was contrary to the reasoning of Doyle CJ in Director of Public Prosecutions v George where the former Chief Justice stated:[4]
In short, Parliament may enact a law that permits or even requires the making of an order that may be regarded as unjust or inappropriate. But the court must apply such a law, assuming it is valid. It cannot be an abuse of process for an applicant to apply to the court for an order in the circumstances in which it was intended by Parliament that the court should be able to or should make an order. The court cannot use the remedy of restraining an abuse of process to prevent an outcome of which the court disapproves.
[4] (2008) 102 SASR 246 at [95].
Counsel also relied upon the view expressed by the High Court in Williams v Spautz that unless the interests of justice demand otherwise, courts should exercise rather than refrain from exercising their jurisdiction to try persons charged with criminal offences.[5]
[5] (1992) 174 CLR 509, Mason CJ, Dawson, Toohey and McHugh JJ at 519.
It was also submitted that there was nothing in the circumstances before the magistrate that justified a stay for an abuse of process. The proceedings had not been brought for an illegitimate or improper purpose, were not frivolous, vexatious or oppressive nor were they unfairly burdensome, prejudicial or damaging. The proceedings were also not of such a nature that they would bring the administration of justice into disrepute.
Counsel also submitted that it would be contrary to the principles governing collateral challenge identified by the High Court in Ousley v The Queen[6] and by Besanko J in Jacobs v OneSteel Manufacturing[7] to permit Mr Stacy to challenge on this appeal the validity of the barring order. The validity of the order had not been raised by or on behalf of Mr Stacy until the filing of his summary of argument in this appeal. There had been a delay of over two and a half years between the issue of the barring order and the challenge to its validity. However, an application for judicial review to challenge directly the order was required to be pursued as soon as practicable and, in any event, within six months after the grounds for review had arisen. Mr Stacy should not be permitted by the Court to “sit on his hands” and wait until he was alleged to have breached the barring order before he sought to challenge its validity. If he considered that the barring order was invalid it was incumbent on him to make his challenge soon after the order was made.
[6] (1997) 192 CLR 69.
[7] (2006) 93 SASR 568.
SA Police also submitted that even if Mr Stacy was to be permitted to collaterally challenge the validity of the barring order, he had not alleged any proper grounds. The first ground apparently advanced for the collateral challenge to validity was that when the relevant order was made on 23 November 2012, the order dated 5 July 2012 was still in force. Counsel submitted that this fact did not invalidate the order of 23 November 2012. The second apparent ground was the alleged failure to disclose on the face of the order any objectively reasonable grounds for its issue. SA Police submitted that there is no requirement to state the grounds on the face of the order and, even if there was such a requirement, the information included in the order was sufficient to meet any such obligation.
The respondent’s submissions on the appeal
Counsel for Mr Stacy submitted that the reliance placed by counsel for the appellant upon the decision of the High Court in Ousley was misplaced. The decision in Ousley simply reflected the reluctance of the common law to permit collateral attacks on warrants and did not stand for any broader proposition. Moreover, McHugh J had stated:[8]
Once the issuing of a warrant is classified as an administrative act, a person affected by that act may seek judicial review of it and have it declared void or set aside by an appropriate court or tribunal. Furthermore, since the prevailing theory is that an administrative act or order made outside jurisdiction is void, a litigant, affected by the act or order, may challenge it collaterally.
...
Indeed, a litigant affected by an administrative act may challenge it collaterally even though the person most directly affected by it is not a party to the litigation.
[8] (1997) 192 CLR 69 at 100.
Counsel also submitted that the issue of a warrant has always been liable to collateral attack on the grounds of unreasonableness in the Wednesbury sense.[9] Thus, even if a challenge to the validity of an order made under the Act was subject to the same restrictions that applied to challenges to warrants, a barring order could be challenged on the basis that it failed to disclose compliance with the statutory requirements or that it was otherwise invalid on its face or that the order had been made in circumstances where no reasonable decision-maker could have issued such an order.
[9] Question of Law Reserved on Acquittal (No 5 of 1999) (2000) 76 SASR 356, Mullighan J at [14]-[15], [27]-[28] and [30] and Williams J at [153].
Counsel further submitted that the magistrate had not reviewed the merits of the barring order. Her Honour had in fact considered the lawfulness of the order in light of the statutory provisions under which it had been issued. The magistrate was required to examine the barring order to determine whether the prosecution amounted to an abuse of process. Her Honour had not made a value judgment as to whether the power to bar should exist but had instead determined that the exercise of the power to bar in the particular circumstances and the subsequent prosecution of Mr Stacy for allegedly breaching the order had converted the processes of the Court into an instrument of unfairness and oppression.
Counsel for Mr Stacy also submitted that the submissions on behalf of the appellant had failed to recognise that an unauthorised, unfair or oppressive exercise of executive power could not necessarily be isolated from subsequent judicial proceedings which related to the exercise of that administrative power. The conduct of the executive in exercising statutory powers could not be excluded from scrutiny in judicial proceedings. A court may exercise its power to stay proceedings that have followed from the exercise of executive power by a law enforcement authority or some other administrative agency. Whether or not the exercise of executive power was subject to review in a non-judicial forum did not affect the operation of that principle.
Counsel acknowledged that the grant of a stay was an exceptional remedy. The majority of the High Court in Batistatos v Roads and Traffic Authority of New South Wales[10] had cited with apparent approval the statements of Gaudron J in Ridgeway v The Queen[11] that “[a]buse of process cannot be restricted to defined and closed categories”. It extended to proceedings that are instituted for an improper purpose and those that are “seriously and unfairly burdensome, prejudicial or damaging” or “productive of serious and unjustified trouble and harassment”.
[10] (2006) 226 CLR 256 at [14].
[11] (1995) 184 CLR 19 at 74-75.
Counsel referred to several categories of case that may enliven the power to stay proceedings. Examples of situations that had led to the grant of a stay included the conduct of law enforcement bodies[12] and the conduct of other Government entities in the course of an investigation.[13] The exercise of a coercive power to require a person to submit to compulsory examination might, in some circumstances, prejudice the fairness of a subsequent trial related to the issues that were the subject of the compulsory examination,[14] even though the statutory coercive power did not include such an express limitation.
[12] R v Tilley (1992) 109 FLR 155; R v Mohi (2000) 78 SASR 55.
[13] Moti v The Queen (2011) 245 CLR 456.
[14] X7 v Australian Crime Commission (2013) 248 CLR 92, French CJ and Crennan J at [53]-[54] and Hayne and Bell JJ at [85].
Counsel also referred to the observation by Mason CJ in Jago v District Court (NSW) that the relevant question is not necessarily whether the prosecution should have been instituted but whether the court should permit its processes to be employed in a manner which gives rise to unfairness.[15]
[15] (1989) 168 CLR 23 at 28.
Counsel submitted that a court dealing with a stay application must approach the matter in two stages.[16] The first step requires the court to examine whether there is any unfairness, injustice, prejudice or oppression. Relevantly to the present matter, counsel submitted that proceedings that are founded upon the unauthorised, improper, unfair or vexatious use of an executive power may become oppressive and unfairly burdensome thereby potentially requiring the grant of a stay. However, before granting a stay the court must consider what steps may be available to deal with the alleged unfairness or injustice.[17] Thus, if the issue of directions, the grant of an adjournment, the exclusion of evidence or the making of other procedural orders may remedy the unfairness, then a stay may not be required. If the injustice or unfairness cannot be resolved in that fashion then, as the High Court noted in Dupas v The Queen, the nature and extent of any intrusion upon the defendant’s right to a fair trial must be balanced against the public interest in “having those who are charged with criminal offences brought to trial”.[18] In conducting that balancing exercise the court must consider the requirement of fairness to the accused, the legitimate public interest in the disposition of charges and in the conviction of those guilty of crime and the need to maintain public confidence in the administration of justice.[19]
[16] R v Jacobi (2012) 114 SASR 227 at [66]-[69].
[17] Williams v Spautz (1991) 174 CLR 509 at 519-520.
[18] (2010) 241 CLR 237 at [37].
[19] Walton v Gardiner (1992) 177 CLR 378, Mason CJ, Deane and Dawson JJ at 395-396.
In Moti v The Queen the High Court clarified the earlier reference in Dupas to public confidence in the administration of justice. French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ said:[20]
Public confidence in this context refers to the trust reposed constitutionally in the courts to protect the integrity and fairness of their processes. The concept of abuse of process extends to a use of the courts’ processes in a way that is inconsistent with those fundamental requirements.
[20] (2011) 245 CLR 456 at [57].
In that light counsel submitted that the public interest is not absolute. It is qualified by the principle that the public has no interest in seeing the disposition of charges and the conviction of the guilty if that follows litigation that is relevantly unfair, prejudicial, oppressive or unjust.[21]
[21] Jago v District Court of NSW (1989) 168 CLR 23, Mason CJ at 33 and Toohey J at 72.
Counsel submitted that while the circumstances of this matter were novel that does not indicate that the exercise by the magistrate of the power to grant a stay had miscarried. The relevant question was whether the proceedings instituted against Mr Stacy were abusive, unfair, oppressive or otherwise had the capacity to convert the processes of the Court into an instrument of injustice and unfairness. That required the Court to examine the exercise of the power that had given rise to the prosecution. In that context it was important that the authorities indicate that the question of whether a stay should be granted was not solely concerned with the quality of the trial but also extended to the question of whether the defendant should be tried at all.[22]
[22] Herron v McGregor (1986) 6 NSWLR 246, McHugh JA at 254, citing with approval R v Vuckov (1986) 40 SASR 498, Cox J at 521.
Counsel submitted that the decision to stay the prosecution of Mr Stacy was correct as the barring order issued on 23 November 2012 was invalid for two reasons. The first of those reasons was that the order issued on 5 July 2012 was still in force when the further order was issued on 23 November 2012. Section 125B of the Act did not permit the issue of multiple concurrent orders to the same person. It was necessary for the police to revoke the earlier order prior to making that upon which the prosecution was based. The Act did not provide for nor contemplate by necessary implication the issue of multiple concurrent orders.
Counsel submitted that, in the absence of an express power to issue multiple concurrent orders, it could be implied that no such power existed. If such a power were to be read into s 125B that would operate to supplement, rather than complement, the power expressly conferred by the provision. That was said to be contrary to a principle expressed by Isaacs J in Carbines v Powell.[23] Because the issue of a barring order restricted the recipient’s freedom of movement and represented a gross intrusion upon their liberty, the terms of s 125B must be construed strictly. The maxim expressio unius est exclusio alterius was said to apply.
[23] (1925) 36 CLR 88 at 92.
For these reasons counsel submitted that the prosecution of Mr Stacy was based upon his alleged failure to comply with an invalid barring order. To permit the prosecution to continue would have been oppressive and unfairly burdensome on Mr Stacy. The proceedings were also foredoomed to fail.
The second alleged basis for the invalidity of the barring order was that the grounds upon which it had been issued were not objectively reasonable within the meaning of s 125B(1)(g). The order had not disclosed on its face what could amount to “any other reasonable ground” for its issue. It was contended that the relevant issue was not whether the police officer who had issued the order had sufficient information upon which to conclude that there were reasonable grounds for its issue but whether the order disclosed on its face objectively reasonable grounds.
The grounds for the issue of the order had comprised two limbs. They were Mr Stacy’s alleged membership of an outlaw motorcycle gang and the past experience of the police with persons involved in such gangs. There was nothing in the explanation provided on the face of the barring order to connect Mr Stacy to the concerns expressed by police (other than his alleged membership of an outlaw motorcycle gang), nor was there anything to connect him to each and every licensed premise identified in the order.
Counsel further submitted that for the purpose of determining whether the proceedings were an abuse of process the magistrate was entitled to examine whether the order was valid. That required an assessment of the asserted grounds for the issue of the order. If the magistrate concluded that the asserted grounds were not reasonable, the order was invalid. In that event the proceedings were oppressive in that they sought to prosecute Mr Stacy for failure to comply with an order that had been issued without lawful authorisation or justification. Alternatively, the proceedings were foredoomed to fail.
It was further submitted that the conclusion that the order was invalid because the grounds for its issue were not objectively reasonable was inevitable. The order did not indicate the need for Mr Stacy to be barred from entering some 1,400 venues, including hairdressing salons and airport terminals, nor did the order identify any basis for it to be concluded that he had previously or could reasonably be expected to attend all of the barred venues. Whether or not the grounds for issue of an order were reasonable for the purposes of s 125B(1)(g) must bear some correlation to the nature of the venues to which the order applied.
Counsel submitted that the right under s 128 of the Act to apply to the Liquor and Gambling Commissioner for a review of a barring order issued by the police was irrelevant to the stay issue. If the proceedings against Mr Stacy were an abuse of process, the magistrate was required to safeguard the integrity of the Court processes by granting a stay. Counsel submitted that the suggestion made on behalf of SA Police that the magistrate lacked the power to grant a stay because of the availability of the s 128 review was tantamount to contending that the magistrate lacked the power to control and protect the processes of the Court from abuse.
A third basis upon which the prosecution was said to be an abuse of process arose from the circumstances in which the order had been made. The terms of the order and the history of issuing barring orders against Mr Stacy provided further justification for the conclusion by the magistrate that to permit the proceedings to continue would be oppressive and unfair or would convert the processes of the Court into an instrument of injustice.
Counsel submitted that there had been an indiscriminate and unreasonable exercise of power by the executive branch of Government acting through SA Police that could and did justify the stay. A court should stay proceedings to protect the integrity of its processes and so as to ensure that they do not become an instrument of injustice where the executive has misused its statutory power thereby leading to the institution of criminal proceedings.
The basis of that submission was that Mr Stacy had been subject to five barring orders over a two year period. Some of those orders had been issued at times when other orders subsisted. Furthermore, it was submitted that the terms of the order made on 23 November 2012 did not identify any basis to prohibit him from attending the venues listed in a 55 page document. In those circumstances it was open to the magistrate to find that the order had been made for the purpose of imposing a blanket restriction on Mr Stacy’s freedom of movement without any regard to whether his presence at all of the identified venues would give rise to a risk of violence or any social behaviour. For that reason the description by the magistrate of the order as “absurdly wide ... unreasonably oppressive and unfair” was appropriate. It was submitted that these features of the order provided a proper basis for the magistrate to conclude that the order had been issued for a purpose that was not connected with the objects of the Act.
The submissions on behalf of Mr Stacy concluded with the contention that the finding by the magistrate that the power to issue a barring order had been exercised for an extraneous purpose had made inevitable her Honour’s further finding that the prosecution of Mr Stacy was also tainted by that extraneous purpose. It was said to be not possible to divide the exercise of the power to issue a barring order from the subsequent issue of proceedings against Mr Stacy. To permit a criminal prosecution to proceed based on the breach of an order issued in circumstances that were neither sanctioned nor contemplated by the Act would convert the processes of the Magistrates Court into an instrument of unfairness and oppression.
Consideration
Before considering the various contentions advanced by counsel, this is an appropriate point to state my views as to the operation of s 125B(1)(g).
I consider that there will be proper grounds for making a barring order under s 125B(1)(g) of the Act if the police officer who makes the order believes on reasonable grounds that there is a reasonable likelihood that if a particular person is not barred from attending licensed premises the safety and welfare of patrons and staff at the premises identified in the order will be put at risk. In making that observation, I do not intend to restrict the circumstances that may potentially provide “any other reasonable ground” for making a barring order under s 125B(1)(g). It is not possible to predict all the circumstances that might provide a reasonable ground.
Section 125B(1)(g) does not require that the subject of a barring order must previously have placed at risk the safety and welfare of patrons and staff at each of the licensed premises specified in the order. That follows from the protective nature of an order. For that reason I consider that the police are entitled to consider the past behaviour of the person and those with whom they associate when they decide the scope of a proposed order.
Against that background I will first consider the submission by counsel for SA Police that Mr Stacy should not be permitted on this appeal to review collaterally the validity of the barring order when he had not done so before the magistrate. Closely related to that submission is the contention that the basis for a collateral review had not been made out.
Point not taken at trial
In Whisprun Pty Ltd v Dixon Gleeson CJ, McHugh and Gummow JJ stated that the principles to be applied when a party seeks to raise on appeal a point that was not taken at the trial are as follows:[24]
It would be inimical to the due administration of justice if, on appeal, a party could raise a point that was not taken at the trial unless it could not possibly have been met by further evidence at the trial. Nothing is more likely to give rise to a sense of injustice in a litigant than to have a verdict taken away on a point that was not taken at the trial and could or might possibly have been met by rebutting evidence or cross-examination. Even when no question of further evidence is admissible, it may not be in the interests of justice to allow a new point to be raised on appeal, particularly if it will require a further trial of the action. Not only is the successful party put to expense that may not be recoverable on a party and party taxation but a new trial inevitably inflicts on the parties worry, inconvenience and an interference with their personal and business affairs.
(footnotes omitted)
[24] (2003) 200 ALR 447 at [51].
Counsel for SA Police observed that only the grant of a stay had been sought and there had been no submission to the magistrate that the relevant barring order was invalid. Against that I note that some of the submissions made to the magistrate might equally have been advanced as grounds of invalidity. The contention that the barring orders had been issued continuously for an improper purpose so as to vex and oppress Mr Stacy and to inhibit his liberties may have supported a submission that the barring order was ultra vires in the broader sense. That may also have been the case with the submission that the police could not properly have considered that Mr Stacy was a threat to safety at each of the premises listed in the barring order. Several other contentions may have supported a submission that the making of the order was ultra vires in the strict or narrow sense. I refer to the suggested inconsistency with the objects of the Act, the claim that the premises from which Mr Stacy was barred did not constitute a class of premises within the scope of s 125B, the defects said to appear on the face of the order and the complaint about the temporal overlapping of orders.
The magistrate invited the police prosecutor to adduce evidence on matters that were largely directed at the validity of the orders. That fact and the matters referred to in the preceding paragraph might possibly be taken to suggest that there would be no unfairness to SA Police in the Whisprun sense if Mr Stacy were to be allowed on this appeal to challenge collaterally the validity of the order.
For the reasons that follow, before deciding whether there would be unfairness to SA Police in the Whisprun sense, it is necessary to examine the different grounds upon which the making of the barring order might have been collaterally challenged. That is because, for the reasons explained below,[25] I consider that certain grounds of challenge might be permitted on this appeal without occasioning unfairness to the prosecution.
[25] At [100].
Collateral challenge
As I have already noted, counsel for SA Police submitted on the appeal that the magistrate had erred by purporting to conduct a review of the barring order rather than considering whether the prosecution amounted to an abuse of process. It was also submitted that, in the particular circumstances, the magistrate was not entitled to conduct a collateral review of the validity of the barring order nor was she entitled to rule on the sufficiency of the material considered by the decision-maker prior to the issue of the order. Against that, counsel for Mr Stacy submitted that the decision to grant a stay was correct as the barring order was invalid.
In light of those submissions, I now turn to the different grounds upon which the making of the barring order might have been collaterally challenged. That requires a brief examination of the decisions of the High Court and of the Full Court of this Court.
The circumstances in which a collateral challenge may be permitted were considered by the Full Court in Hinton Demolitions Pty Ltd v Lower (No 2).[26] The defendant had been prosecuted for failure to keep an accurate vehicle log book and failure to pay certain statutory road user charges. Those obligations only applied if the load capacity of the vehicle exceeded 8 tons. The prosecution relied upon a certificate issued by the Registrar of Motor Vehicles under the relevant regulations so as to prove the load capacity of the vehicle. The defendant argued that the regulations were invalid and also that the certificate was invalid as the owner had been denied natural justice by the Registrar when the certificate was issued without the owner having being heard.
[26] (1971) 1 SASR 512.
Bray CJ drew a distinction between those administrative acts which were a nullity and those which were merely voidable. If the relevant decision is said to be a nullity that can be asserted in any proceedings where invalidity is relevant. However, if the administrative act was merely voidable then it could only be challenged in appropriate proceedings brought by the appropriate party. The alleged invalidity of the Registrar’s certificate fell into the latter class. The certificate could be challenged in judicial review proceedings or in an action for a declaration. In either case the Registrar would be a party to those proceedings. The Registrar was not a party to the prosecution in the Magistrates Court.[27]
[27] Ibid at 523-524.
Wells J took a stricter view of the circumstances in which collateral challenge was to be permitted. His Honour held that, leaving aside two exceptions that are not relevant in the present circumstances, an administrative act could not be collaterally challenged in any civil or criminal proceedings unless that was specifically authorised by legislation. The only way to attack an allegedly unlawful administrative act was by separate proceedings appropriate for that purpose.[28]
[28] Ibid at 549.
Mitchell J agreed with the reasons of both Bray CJ and Wells J.[29] Thus, the Full Court did not resolve in Hinton the circumstances in which collateral challenge may be permitted. However, the Full Court did accept that the validity of subordinate legislation may be collaterally challenged.
[29] Ibid at 525.
The Full Court accepted in Fountain Christian School Inc v Harrington that an administrative decision that was founded upon a misapplication of the relevant statute could be collaterally challenged in a criminal trial before a magistrate.[30] In that case the defendant school had been prosecuted for continuing to provide education after its registration was purportedly cancelled. An error of law that invalidated the decision to cancel the registration was apparent on the face of that decision.
[30] (1990) 53 SASR 361.
In Ousley v The Queen the High Court considered a collateral challenge to the issue of listening device warrants.[31] Toohey, Gaudron and Gummow JJ held that a warrant may only be collaterally attacked if the invalidity appears on the face of the warrant.[32] McHugh J held that because the issue of a warrant is an administrative act, its validity may be challenged collaterally in a criminal trial.[33] Kirby J did not decide whether challenges to the validity of a warrant were limited to errors appearing on its face.
[31] (1997) 192 CLR 69.
[32] Ibid, Toohey J at [85], Gaudron J at [95] and Gummow J at [128].
[33] Ibid at [105].
The limitation by the High Court majority in Ousley of collateral challenges to errors appearing on the face of warrants has been criticised by Aronson and Dyer.[34] However, the High Court has not departed from the limitation expressed in Ousley.
[34] Judicial Review of Administrative Action (Thomson Reuters, 2013, 5th ed) at [10.320].
In Question of Law Reserved on Acquittal (No 5 of 1999) Mullighan and Williams JJ suggested that a warrant may be subject to collateral challenge on the grounds of unreasonableness in the Wednesbury sense.[35] The High Court recently reformulated the Wednesbury principle in Minister for Immigration and Citizenship v Li.[36] Hayne, Kiefel and Bell JJ held that “[u]nreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification”.[37] In similar vein French CJ held that “a disproportionate exercise of an administrative discretion, taking a sledgehammer to crack a nut, may be characterised as irrational and also as unreasonable simply on the basis that it exceeds what, on any view, is necessary for the purpose it serves”.[38] Gageler J held that “[n]o reasonable tribunal, seeking to act in a way that is fair and just, and according to substantial justice and the merits of the case, would have refused the adjournment”.[39]
[35] (2000) 76 SASR 356 at [27]-[28], [30] and [153].
[36] (2013) 249 CLR 332.
[37] Ibid at [76].
[38] Ibid at [30].
[39] Ibid at [124].
The circumstances in which a collateral challenge may be permitted were further considered by the Full Court in Jacobs v OneSteel Manufacturing Pty Ltd.[40] The Court comprised five justices because it was thought possible that the correctness of the decision in Hinton may need to be reconsidered.[41]
[40] (2006) 93 SASR 568.
[41] Ibid at [3] and [81].
The issue before the Full Court in Jacobs v OneSteel was that certain provisions of the Workers Compensation Tribunal Rules 2001 restricted the award of costs to a successful party. The worker submitted that the relevant rules were invalid. The leading judgment was that of Besanko J with whom Duggan, Vanstone and Layton JJ agreed. Debelle J published separate reasons.
Besanko J noted that the rules had been challenged on the ground of ultra vires in the simple or narrow sense as it was alleged they were beyond the statutory rule making power or inconsistent with other legislative provisions. The rules had not been challenged on grounds that may have required the adducing of substantial evidence. Thus, Hinton was distinguishable.
Besanko J held that a collateral attack on the validity of the rules was permissible as they were a form of delegated legislation and not administrative in nature. Besanko J noted that it was established that a person prosecuted for a breach of subordinate legislation may defend the matter on the basis that the by-law or regulation is invalid, at least when the challenge is on the grounds of simple or narrow ultra vires. Besanko J also noted that in Ousley the High Court had held that because the issue of a warrant was an administrative act it could be challenged collaterally in the course of a criminal trial although the majority considered that the grounds of challenge are limited. There was no reason to distinguish a challenge to the validity of the rules in civil proceedings from those authorities which had allowed a collateral challenge to subordinate legislation in criminal proceedings.
Besanko J also held that it was not necessary to decide whether a collateral challenge is permissible in a case where the grounds of challenge are likely to involve the adducing of substantial evidence.[42] His Honour went on to observe that he did not doubt that in some cases there are good reasons to allow a collateral challenge and in other cases there are good reasons not to allow such a challenge.[43] After referring to certain academic publications Besanko J identified the factors that may be taken into account in determining whether a collateral challenge should be allowed as follows:[44]
1. Are the grounds of challenge likely to involve the adducing of substantial evidence?
2. If a collateral challenge is permitted, will all proper parties be heard before the court or tribunal in which the collateral challenge is to be heard?
3. In the particular case, does the allowing of a collateral challenge by-pass the protective mechanisms associated with judicial review proceedings such as the rules as to standing, delay and other discretionary considerations?
4. Is there a statutory provision that bears in one way or another on the question of whether a collateral challenge should be permitted?
5. Is the issue raised by collateral challenge clearly answered by authority?
6. Are there other cases pending which raise the same issue?
7. (Possibly) Is there a more appropriate forum in terms of expertise and perhaps court procedures such that a collateral challenge should not be permitted?
[42] Ibid at [90].
[43] Ibid at [93].
[44] Ibid at [93].
Debelle J held that a collateral challenge may be made to the validity of delegated legislation in criminal or civil proceedings.[45] Hinton was distinguishable as that case had concerned an administrative, and not a legislative, act. However, his Honour did note that in Hinton the Full Court had determined a collateral challenge to the validity of the regulations based on ultra vires. His Honour also stated that the distinction drawn by Bray CJ in Hinton between void and voidable acts was no longer relevant.[46]
[45] Ibid at [15] and [17].
[46] Ibid at [23], citing Minister for Multicultural and Ethnic Affairs v Bhardwaj (2002) 209 CLR 597 Gaudron and Gummow , JJ at 612-613, McHugh J at 618 and Hayne at J 643-647.
It is apparent from the authorities to which I have referred that a collateral challenge may be made to an administrative decision (as distinct from a legislative action) on the basis that it is said to be invalid on its face or not supported by the relevant Act.[47] An administrative decision may also arguably be challenged on the ground of unreasonableness in the Wednesbury sense (as that principle has been explained by the High Court in Li).[48] The Full Court has not decided whether a collateral challenge should be permitted on grounds that may require the adducing of substantial evidence.[49] Other relevant considerations in deciding whether a collateral challenge should be allowed are those listed by Besanko J in Jacobs v OneSteel.
[47] Fountain Centre Christian School Inc v Harrington (1990) 53 SASR 361.
[48] Question of Law Reserved on Acquittal (No 5 of 1999) (2000) 76 SASR 356, Mullighan and Williams JJ.
[49] Jacobs v OneSteel Manufacturing Pty Ltd (2006) 93 SASR 568, Besanko J at [90] with Duggan, Vanstone and Layton JJ agreeing.
The judgment of the Full Court in Fountain Centre Christian School Inc v Harrington[50] makes clear that Mr Stacy would have been entitled to defend the prosecution by submitting that the barring order had been issued contrary to the Act or that it was defective on its face. That is consistent with the finding of the High Court in Ousley. While the submissions made on behalf of Mr Stacy to the magistrate were directed entirely at the making of a stay, I do not consider that there would be any unfairness of the type identified by the High Court in Whisprun if Mr Stacy is permitted in this appeal to challenge the validity of the barring order on the basis that it was invalidated by the temporal overlap or is invalid upon its face. It would be contrary to the interests of justice not to consider an alleged defect of that type. Moreover, these grounds of challenge based on ultra vires in the narrow sense do not require further evidence.
Ultra vires in the narrow sense
[50] (1990) 53 SASR 361.
I will now consider the challenges to the validity of the barring order arising from the temporal overlap in orders and the error said to appear on the face of the order.
While there was only one order that purported to apply to Mr Stacy as at the date of the alleged offence on 28 April 2013, the order made on 23 November 2012 and served upon him on 4 December 2012 is said to have been invalid because the order made on 5 July 2012 was still in force and was not to expire until 4 January 2013. Thus, there was a period of about one month between 4 December 2012 and 4 January 2013 when Mr Stacy was ostensibly subject to two barring orders expressed in different terms.
There is nothing in the text of s 125B of the Act which suggests that it is not permissible for a person to be subject to two different barring orders at the same time. If the premises named in overlapping barring orders are identical, the subject will not be left uncertain as to the premises they are prohibited from attending. If the prohibited premises are not identical it is necessary to consider whether the later barring order has impliedly repealed the earlier order.
The law has long recognised that an earlier will or statute may be impliedly repealed by a later testamentary instrument or enactment. While it is far preferable that the intention of the testator or legislature should be expressly stated so as to avoid uncertainty, if the intention is clear then the later instrument must be given proper effect and may, by implication, revoke or vary the earlier inconsistent instrument.
There is no reason in principle why a statutory instrument made under an Act, such as a barring order, cannot also be subject to implied repeal or variation. Of course, any special requirements that govern repeal or variation set out in the enactment under which the instrument is made must be observed. Furthermore, just as with the implied repeal or amendment of a statute, the intended effect of the new barring order upon the prior order must be clear. Any uncertainty as to the operation of a barring order must be resolved in favour of Mr Stacy. That is because an order significantly restricts his freedom of movement and exposes him to the risk of criminal prosecution.
Section 125B(2) of the Act deals with the revocation or variation of barring orders. It simply provides that a police officer may, on the authorisation of a senior officer, vary or revoke a barring order by serving a subsequent order on the person. The evidence of Superintendent Patterson establishes that the requirement for authorisation by a senior officer was met in relation to the order served on Mr Stacy on 4 December 2012. Apart from the requirement that the subsequent order be served on the person, s 125B(2) does not impose any particular procedural requirements for the making of a subsequent order that will vary or revoke an earlier order. While I consider that it would have been far preferable for the police to have expressly revoked the preceding order when the later order was made on 4 December 2012, I do not consider that the failure to do so, of itself, invalidates the later order.
The order made on 5 July 2012 barred Mr Stacy from a considerable number of premises while the order served on 4 December 2012 barred him from a much greater number of premises. Subject to ten exceptions, each of the premises listed in the order made on 5 July 2012 also appeared in the subsequent order.
No explanation has been provided to Mr Stacy or to the Court as to why the ten premises listed in the earlier order were not also included in the later order. In a number of instances one might possibly infer that, upon reflection, the police decided that members of the Hells Angels and similar clubs were unlikely to attend at the Police Club, the Lyceum Club, Ayers House or certain ethnic clubs. In other cases, the premises may have closed.
A question arises as to whether the order served on 4 December 2012 should be taken to have revoked that made on 5 July 2012. Alternatively, to the extent that the later order is inconsistent with the earlier order, it might be taken to have effected an implied variation under s 125B(2) but otherwise left the earlier order in operation. In the present circumstances it is not necessary to determine which of those two possibilities is correct, although I consider it more likely that there was an implied repeal because the restrictions imposed under the two instruments were materially different. The practical effect in both instances is the same. This being that the prohibition upon Mr Stacy attending premises named only in the order made on 5 July 2012 ceased to operate upon the further order being served upon him on 4 December 2012. That does not affect the present appeal as the Savvy Bar was included in both barring orders.
For completeness I note that the reference by counsel for Mr Stacy to the principle expressed by Isaacs J in Carbines v Powell does not support his submission that barring orders could not be issued concurrently. The principle referred to by Isaacs J was that one cannot extend the operation of a statutory provision so as to give better effect to its objects by extending its operation to matters which, upon a proper construction, it did not cover. Isaacs J summarised the principle as “... in the absence of express statement to the contrary, you may complement, but you may not supplement, a granted power”.[51] As I understood counsel’s submissions, the contention was that no power to issue multiple concurrent orders could be implied. I consider that principle does not arise in the present circumstances. Because there is not a clear statutory prohibition (whether by express words or necessary implication), the Act does not preclude the making of a further order before a subsisting order has expired. The effect of that practice needs to be determined by reference to the terms of the particular orders rather than by the implication of a statutory prohibition.
Facial invalidity
[51] (1925) 36 CLR 88 at 92, citing himself in Australian Boot Trade Employees’ Federation v Whybrow & Co (1910) 11 CLR 311 at 338.
I now turn to the further contention that the barring order was invalid on its face as it failed to properly disclose the basis upon which it had been made. There is no requirement in s 125B that the basis for the issue of a barring order must be specifically stated on the face of the document. Section 125B(4) requires a written record to be kept of the name, rank and identification number of the senior police officer giving the authorisation and also of the officer requesting the authorisation. More importantly, a written record must also be kept of the details of the conduct giving rise to the request and, amongst other matters, the grounds upon which the issuing of the order is authorised. While it is unnecessary to decide the point in the present circumstances, there is good reason to think that a failure to comply with those obligations to a material extent may invalidate a barring order. In my view the primary purpose of s 125B(4) is to ensure that information that may be relevant to the review of an order under s 128 is available to the Liquor and Gaming Commissioner or the Licensing Court and ultimately this Court in the event of a judicial review. The requirement to maintain detailed records would also assist senior police to oversee the making of orders and the Police Ombudsman to deal with complaints about that issue. In these various ways s 125B(4) operates as a significant safeguard against the potential misuse of police power. Given the detailed and prescriptive terms of s 125B(4), I cannot see any basis to imply a further obligation that police must state the basis for the issue of an order on the face of the document. Compliance with s 125B(4) will suffice.
In any event, I also find that the information provided by the police on the face of the order and set out at paragraph 15 above was sufficient to inform Mr Stacy as to why the barring order had been made. He was informed that police considered him to be a member or associate of an outlaw motorcycle gang. He was further informed that, having regard to past behaviour and problems at licensed premises involving such gangs, police believed that there was a danger to patrons and staff should he be allowed entry onto the nominated licensed premises. In my view, no greater particularity was required.
Ultra vires in the broad sense
I now turn to consider the possibility of challenge to the validity of the barring order based on ultra vires in the broad sense. I refer here to the contentions that the order was made for an improper purpose and that relevant considerations were not taken into account.
While the prosecution was given the opportunity by the magistrate to adduce more evidence and elected not to do so, that decision was made in the context of a defence submission that a stay should be granted and the intimation by the magistrate that she was contemplating such an order. The making of the barring order was not collaterally challenged and at no point did the magistrate suggest that she was going to determine the validity of the order. Thus, the submissions of the prosecutor only touched peripherally upon that issue. If the prosecutor had been aware that the validity of the order was to be collaterally reviewed, SA Police may have approached the case quite differently. Rather than simply oppose the grant of a stay, SA Police might have elected to lead further evidence that related more specifically to Mr Stacy and sought to explain more fully why it was considered necessary to make such a wide ranging barring order. The prosecution submissions may also have addressed the question of whether a collateral challenge was permissible. On that basis I consider it would be unfair to the prosecution in the Whisprun sense to allow in this appeal a collateral challenge based upon ultra vires in the broad sense.
Because of that finding it is not necessary for me to reach a concluded view as to whether the considerations listed by Besanko J in Jacobs v OneSteel require that a collateral challenge should not have been permitted before the magistrate on the broader ultra vires grounds.
If it had been necessary to consider those matters there would have been a serious question as to whether a collateral challenge should have been disallowed as it would have by-passed the protective mechanisms associated with judicial review proceedings. Two issues may have arisen in that context.
The first such issue is that at the relevant time rule 200(2) of the Supreme Court Civil Rules 2006 required that an action for judicial review must be commenced as soon as practicable after the date when the grounds for the review arose, and in any event, within six months after that date unless the Court granted an extension of time. The six months limit had long passed before there was any challenge to the validity of the barring order.
A second consideration would have been whether permission should have been granted under the former rule 200(4). That sub-rule authorised the Court to grant permission if there was a reasonable basis upon which a right to judicial review might be established. Permission might possibly have been refused on the basis that Mr Stacy should have exercised his right under s 128 of the Act to apply for a review of the barring order.[52]
Wednesbury unreasonableness
[52] Weinal v Parsons (1994) 178 LSJS 48.
In the circumstances of this case the making of a collateral challenge based upon an assertion that the barring order was unreasonable in the Wednesbury sense (as since explained in Li) gives rise to the same difficulty that I have referred to above at paragraph 114 in relation to a challenge based upon ultra vires in the broad sense. For that reason I consider that it would be unfair to the prosecution in the Whisprun sense to allow in this appeal a collateral challenge based upon Wednesbury unreasonableness when that issue had not been raised before the magistrate.
I also note that the affidavits of Sergeant Lienert and Superintendent Patterson included substantial and significant evidence which, if it withstood cross examination, would have supported a submission that the making of the barring order was not “a decision which lacks an evident and intelligible justification”[53] and nor was it “a disproportionate exercise of an administrative discretion … that … exceeds, what, on any view, is necessary for the purpose it serves”.[54] Such a submission might possibly have been bolstered by additional evidence about the concerns held by police. To put the matter another way, there is no basis to assume that a collateral challenge based upon Wednesbury unreasonableness would necessarily have succeeded.
[53] Minister for Immigration and Citizenship v Li (2013) 249 CLR 332, Hayne, Kiefel and Bell JJ at [76].
[54] Ibid, French CJ at [30].
Other matters
While it was not argued on the appeal, for completeness I note that some of the licensed premises referred to in the barring order served on 4 December 2012 have been loosely described. It is fundamental that an order made under s 125B of the Act can only bar entry to licensed premises. There is nothing in s 125B which extends the scope of orders to cover attendance at unlicensed premises that may include a smaller area that is licensed, provided that the person does not enter the licensed area.
It seems likely to me that some of the premises identified in the order may possibly not be licensed in their entirety but may include areas that are separately licensed. Two examples where this issue may potentially arise are Adelaide University and the Adelaide International Airport Terminal.[55] The same issue might also possibly arise with some of the sporting venues, wineries and a food plaza.
[55] In the latter case, certain airport premises have been separately listed, eg the Qantas Club and the Coopers Alehouse.
A further potential source of uncertainty is, in some instances, the incomplete description of the area covered by the prohibition. The statement in the order that the address of the University of Adelaide is simply Adelaide 5000[56] might give rise to a question as to whether the barring order was intended to apply to all University premises wherever located or only those in Adelaide 5000 (which may not necessarily include the North Terrace campus). Similarly, a question arises as to the intended meaning of the reference to the Adelaide International Air Terminal. While that expression may have been clear when the international terminal was located in a separate building to the domestic terminal, there is now no obvious division into international and domestic terminals.
[56] The correct postcode is actually 5005.
The problems I have referred to in the preceding three paragraphs may have the result that the barring order is potentially ineffective in relation to some of the premises that it seeks to cover. Whether that is so will depend upon the particular facts in each case. I consider that any such deficiency would not invalidate the barring order as a whole. The order will apply to those licensed premises that have been described with sufficient certainty but will not apply to those where its coverage is uncertain. In any event, it has not been suggested that these potential difficulties apply to the description of the Savvy Bar Lounge contained in the relevant barring order.
I also take the opportunity to comment upon one other matter. While it was wisely not pressed on appeal, the police prosecutor submitted that s 125D required the Court to accept the validity of the barring order. In fact, s 125D simply operates as an aid to proof. A certificate issued in accordance with that provision will be accepted, in the absence of proof to the contrary, as proof of the matters listed in paragraphs (a), (b) and (c) of s 125D(2). An aid to proof of that type does not establish the validity of the order. It simply creates a rebuttable presumption in relation to the matters specified in the certificate to the extent authorised by s 125D.
The stay order
At no point did the magistrate state that she was conducting a review of the barring order so as to determine its validity. Nevertheless, after setting out the history of the matter and the relevant legal principles, the focus of her judgment was almost entirely upon the appropriateness and validity of the barring order.
At paragraphs 20 to 27 of the judgment her Honour compared the circumstances of the present case to those in R v Papadopoulos.[57] Her Honour distinguished the barring order made in Papadopoulos from the order before her on the basis that it was the licensee rather than the police who had applied for the barring order against Mr Papadopoulos and that order applied to only one hotel rather than a very long list of many different types of licensed premises. The focus of that discussion was upon the appropriateness and validity of the order rather than the question of whether the process of the Court was being abused by the prosecution.
[57] [2010] SASCFC 30.
Consistently with the latter approach her Honour then found at paragraph 29 that the continuous issue of barring orders to Mr Stacy by the police was for a collateral purpose that was not within the scope of the Act. That finding plainly involved a review of the validity of the barring order.
Her Honour then went on to observe that the violent altercations between members of rival outlaw motorcycle gangs appeared to have occurred at licensed premises which had a particular “flavour”. She gave as examples certain premises in Hindley Street and also noted that violent episodes often appeared to occur in the early hours of the morning at nightclubs and bars in the central business district, including Savvy (being the premises that Mr Stacy is alleged to have attended contrary to the barring order).
It appears to me that her Honour’s reason for the reference to the particular premises, or classes of premises, was to suggest that attendance at such establishments might properly have been the subject of a barring order and thereby to highlight that, in her view, many other premises had been listed without proper grounds. Thus, the observations made by her Honour relate to the validity of the order.
The clearest indication that the magistrate was, in substance, reviewing the validity of the barring order appears in paragraph 31 of her Honour’s judgment. She stated that the barring orders imposed on Mr Stacy were absurdly wide in scope and unreasonably oppressive and unfair. They were also unjust due to their broad scope. There were not proper grounds to find that the police could be satisfied that there was a reasonable apprehension of danger to patrons and staff if Mr Stacy were to be permitted to enter the listed premises. Each of those findings plainly related to the validity of the barring order.
The finding by the magistrate that it was necessary to permanently stay the prosecution of Mr Stacy so as to prevent an abuse of the process of the Court was expressly based upon her Honour’s finding that the relevant barring order was absurdly wide, unreasonably oppressive, unfair and unjust, lacked proper grounds and was made for a collateral purpose.
The conclusions reached by her Honour about the barring order failed to recognise correctly the operation of s 125B(1)(g) (as to which see my observations at paragraphs 76 to 77 above) and effectively rejected police evidence that had not been challenged.
That evidence referred to a significant history of violent disputation between members of motorcycle clubs, including the Hells Angels of which Mr Stacy is a member. The evidence was also that many of those incidents had occurred on licensed premises in not only the central business district but across metropolitan Adelaide. Mr Stacy had allegedly been involved in two incidents at licensed premises in company with other members of the Hells Angels, albeit that those particular incidents were apparently of lesser gravity than many of the others referred to in the evidence. One of those earlier alleged incidents involving Mr Stacy had occurred at the same premises (ie the Savvy Bar Lounge) that was the subject of the charge before the Court.
For the reasons given at paragraph 133 above, I find that the magistrate erred in concluding that the relevant barring order was absurdly wide, unreasonably oppressive, unfair and unjust, lacked proper grounds and was made for a collateral purpose. Contrary to the submissions advanced on the appeal, I also find that the barring order was not invalidated by either the temporal overlap with the earlier order[58] or the limited reasons stated on the face of the order.[59] Given these findings, there was no basis for the magistrate to conclude that the prosecution of Mr Stacy abused the process of the Court.
[58] For the reasons given above at [103]-[106].
[59] For the reasons given above at [111]-[112].
While the magistrate made clear her disapproval of the fashion in which the police had used their powers to make a barring order, as Doyle CJ observed in Director of Public Prosecutions v George, that alone did not entitle her Honour to restrain an abuse of process. The circumstances were such that, as the High Court observed in Williams v Spautz, the Court should have exercised its jurisdiction to try the charge before it. This was not a case where the proceedings were so unfair and unjust that a stay was required so as to maintain public confidence in the administration of justice[60].
[60] Jago v District Court of NSW (1989) 168 CLR 23, Mason CJ at 30, Deane J at 56-58.
Conclusion
For these reasons, I propose to make orders to the following effect:
(a) the appeal is upheld;
(b)the order of the magistrate permanently staying the prosecution of Mr Stacy is set aside; and
(c)the matter is remitted for another magistrate to determine the charge against Mr Stacy.
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