Re Magistrate D Temby; Ex parte Stanton
[2015] WASC 357
•29 SEPTEMBER 2015
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
CITATION: RE MAGISTRATE D TEMBY; EX PARTE STANTON [2015] WASC 357
CORAM: BEECH J
HEARD: 23 SEPTEMBER 2015
DELIVERED : 29 SEPTEMBER 2015
FILE NO/S: CIV 2466 of 2015
MATTER :In the matter of an application under the Magistrates Court Act 2005, s 36 for a review order against Mr D Temby, Stipendiary Magistrate of the Magistrates Court of Western Australia at Perth
EX PARTE
LLOYD PETER STANTON
Plaintiff
Catchwords:
Administration law - Application for a review order - Whether error of law by magistrate sufficient ground for review order under Magistrates Court Act 2004 (WA) s 36 - Need for jurisdictional error or error of law on the face of the record
Legislation:
Magistrates Court Act 2004 (WA), s 36
Result:
Application dismissed
Category: B
Representation:
Counsel:
Plaintiff: Mr D Jones
Solicitors:
Plaintiff: Darren Jones Barrister and Solicitor
Case(s) referred to in judgment(s):
Abbott v Magistrate Malley [2012] WASC 420
Blum v Boothman [2014] WASC 432
Chief Executive Officer of Customs v Jiang [2001] FCA 145; (2001) 111 FCR 395
Craig v The State of South Australia [1995] HCA 58; (1995) 184 CLR 163
Director of Public Prosecutions (WA) v Peters [2010] WASC 139
Jago v District Court of New South Wales [1989] HCA 46; (1989) 168 CLR
Kirk v Industrial Court of New South Wales [2010] HCA 1; (2010) 239 CLR 531
Lee v The Queen [2014] HCA 20; (2014) 253 CLR 455
Rayney v AW [2009] WASCA 203
Re Fortescue Metals Group Ltd; Ex parte Fortescue Metals Group Ltd [2010] WASC 88
Re Magistrates Court of Western Australia; Ex parte Mansell [2013] WASC 120
Re State Administrative Tribunal; Ex parte McCourt [2007] WASCA 125; (2007) 34 WAR 342
Saldanha v Fujitsu Australia Ltd (No 2) [2011] WASC 360
Seddon v Medical Assessment Panel [2011] WASC 237
Seiffert v Prisoners Review Board [2011] WASCA 148
Stewart v City of Belmont [2013] WASC 366
Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43; (2013) 252 CLR 480
Woodley v Minister for Indigenous Affairs [2009] WASC 251
BEECH J: This is an application for a review order in respect of a magistrate's decision to dismiss Mr Stanton's application for a permanent stay of the prosecution against him in the Magistrates Court.
This application was brought on urgently in circumstances where the trial of the prosecution in the Magistrates Court is listed for 2 October 2015.
For the reasons that follow, I would dismiss the application.
The prosecution in the Magistrates Court
Mr Stanton is a serving police officer.
By prosecution notice dated 7 April 2014, Mr Stanton was charged with an offence against s 170 of the Criminal Code (WA) that between 10 and 11 February 2014 when required under a written law to give information to another person, knowingly gave information to the other person that was false in a material particular. The prosecution notice was issued by Detective Sergeant Ceri Skamp, the interested party in this application.
The interview of Mr Stanton
On 24 February 2014, Detective Sergeant Skamp and Sergeant Becker asked Mr Stanton if he would voluntarily participate in a criminal record of interview regarding the subject‑matter of the offence with which he was subsequently charged. Mr Stanton declined to participate in a criminal interview.
Mr Stanton was then asked by Sergeant Becker, and possibly also Detective Sergeant Skamp, to attend police premises in Adelaide Terrace, Perth. There, he was led to an interview room. Sergeant Becker stated that he ordered Mr Stanton, pursuant to reg 603 of the Police Force Regulations 1979 (WA), to answer the questions that would be put to him in the interview. Sergeant Becker informed Mr Stanton that it was not intended that his answers to questions would be used in any criminal proceedings against him.
Mr Stanton responded that what was occurring was not a voluntary interview, but one conducted in the knowledge that should he decline to provide answers without a reasonable excuse, he may be subject to disciplinary action which could include his removal, and that he did not consider that he had any other option but to answer the questions put to him.
Mr Stanton stated that he did not give permission for any record of the interview to be disclosed to any third party outside the WA Police.
Sergeant Becker informed Mr Stanton that the questions in the interview would relate to the subject‑matter of the charge subsequently made against Mr Stanton. Sergeant Becker stated that Mr Stanton needed to provide an account of his actions. Mr Stanton proceeded to answer the questions put to him.
The criminal proceedings
Following disclosure by the prosecution, on 11 June 2014, Mr Stanton's solicitor reviewed the contents of the disclosed material. It included audio recordings of the compulsory interview that had been conducted on 24 February 2014.
The prosecution disclosure also included notes made by Detective Sergeant Skamp during the compulsory interview, audio recordings of compulsory interviews conducted between Detective Sergeant Skamp and witnesses to be called in the criminal proceedings, correspondence between Detective Sergeant Skamp and a lawyer at the State Solicitor's Office, and a document summarising the compulsory interview with Mr Stanton.
On 11 July 2014, Mr Stanton's solicitor had a conversation with Ms Tan. Ms Tan was counsel briefed in the criminal proceedings on behalf of the prosecution. During that conversation, Ms Tan stated that she had reviewed the contents of the brief, excluding running sheets, and had listened to the audio of the recording of the compulsory interview. Ms Tan stated that she considered that the audio recording of the compulsory interview was not admissible at trial.
Application for a stay of proceedings
On 22 July 2014, Mr Stanton applied for a permanent stay of the prosecution on the grounds that it was an abuse of process. The application was made pursuant to s 76 of the Criminal Procedure Act 2004 (WA). The application was accompanied by a written outline of submissions and affidavits in support.
The affidavits in support of the application set out the background facts, outlined above.
Mr Stanton's submissions to the magistrate relied heavily on the decision of the High Court in Lee v The Queen.[1] In Lee the High Court upheld the appeal of persons convicted of an offence in relation to which they had been compulsorily required to provide information. The submissions pointed to the statement in Lee that it is a breach of the principle of the common law in respect of proof of prosecution and a departure in a fundamental respect from the criminal justice system for the prosecution to be armed with the evidence of an accused person obtained under compulsion concerning matters the subject of the charge(s).
[1] Lee v The Queen [2014] HCA 20; (2014) 253 CLR 455.
The submissions asserted that the facts of the present matter included the essential elements of Lee. Mr Stanton submitted that additional features of his case were worse than the position in Lee. In particular, the prosecutor Detective Sergeant Skamp had been armed with the contents of the compulsory interview of Mr Stanton during the course of the investigation.
Before the magistrate, Mr Stanton submitted that:
(1)an abuse of process would occur if the matter was tried with the present prosecuting counsel;
(2)because the investigator was armed with the compulsory interview during the investigation, the entire case against Mr Stanton was tainted and could not be cured; and
(3)consequently, a permanent stay should be ordered on the grounds of abuse of process.
The prosecution filed written submissions in opposition to Mr Stanton's application before the magistrate. In summary, the prosecution submitted that:
(1)the investigating officer's knowledge of the contents of Mr Stanton's managerial interview did not influence the course of the investigation or any of the evidence obtained; and
(2)in any event, there was no abuse of process as required by s 76 of the Criminal Procedure Act.
The prosecution submitted that prosecuting counsel's knowledge in itself could not sustain a permanent stay. That is because if prosecuting counsel's knowledge of the contents of the interview was a problem, the remedy would be to allow new prosecuting counsel to be engaged. The prosecution submitted that Lee was specifically concerned with the question of the impact of prosecuting trial counsel's knowledge of the interview of the accused upon the fairness of the trial.
In relation to Lee, the prosecution's submissions:
(1)emphasised the distinction between whether there had been a miscarriage of justice at a trial, with which Lee was concerned, and the question of whether the charge involves an abuse of the process of the court under s 76 of the Criminal Procedure Act; and
(2)stated that in Lee, the interviews had been conducted by an external agency and were provided to the police and to the DPP unlawfully. The interviews in the present case were information that the prosecution was said to be entitled to have, because they were required to be disclosed pursuant to s 61 and s 42 of the Criminal Procedure Act.
The stay application was heard on 28 July 2014. The magistrate reserved his decision to 16 September 2014.
On 16 September 2014, the magistrate adjourned the handing down of his decision to 30 October 2014, in order to enable him to review the transcript of the hearing on 28 July 2014.
On 30 October 2014, the magistrate outlined the factual background, and summarised the competing submissions that had been made. He referred to the High Court decision in Lee pointing out, correctly, that that case concerned an appeal against conviction, whereas he was concerned with an application to stay the proceedings before trial.[2] The magistrate came to the conclusion that he needed to be provided with and to consider the detail of the contents of the interview. The magistrate adjourned the matter to 11 November 2014.
[2] ts 40, 30 October 2014.
On 11 November 2014, the magistrate delivered oral reasons for his decision dismissing the stay application.
The magistrate's decision
The magistrate incorporated into his reasons by reference the outline he had given on 30 October 2014.[3] In his reasons, the magistrate:
(a)referred to s 76(1) of the Criminal Procedure Act;
(b)stated that the categories of abuse of process are not closed;
(c)stated that commonly two questions arose, first, whether the conduct complained of involves vexation, oppression and unfairness to an accused, and secondly, whether the tolerance of that conduct would bring the administration of justice into disrepute;
(d)referred to the decision in Jago v District Court of New South Wales[4] and the test stated by Mason CJ that, in order to justify a permanent stay, there must be a fundamental defect which goes to the root of the trial of such a nature that nothing that a trial judge can do in the conduct of the trial can relieve against its unfair consequences;
(e)stated that the question was whether the gathering of the information in Mr Stanton's managerial interview met the test proposed by Mason CJ, namely that nothing a trial judge could do could relieve against its unfair consequences; and
(f)stated that having considered the content of the interview, he concluded that the prosecution could pursue the case against Mr Stanton without the interview, and Mr Stanton could mount his defence with an unaffected prosecutor conducting the trial, so that the integrity of the trial could be maintained.
[3] ts 2, 11 November 2014.
[4] Jago v District Court of New South Wales [1989] HCA 46; (1989) 168 CLR 23.
The prosecutor stated that the managerial interview and all reference to its contents had been removed from the brief to which trial counsel would have access to.
Subsequent progress of the prosecution
On 11 November 2014, the magistrate set the matter down for trial on 26 February 2015.
On 20 February 2015, an application was made on behalf of Mr Stanton to vacate the trial date on medical grounds. The application was successful. The trial of the criminal charge was listed for mention on 10 June 2015.
On 10 June 2015, the criminal charge was listed for trial on 2 October 2015.
The application
By notice of originating motion dated and filed 14 September 2015, Mr Stanton applies for a review order under s 36 of the Magistrates Court Act 2004 (WA). The grounds for the application are stated in the following terms:
1.The learned magistrate made an error of law in dismissing the application for a permanent stay of prosecution in:
1.1finding that reg 603 of the Police Force Regulations 1979 (WA) permitted an incursion into the fundamental common law rights of the applicant when that finding is contrary to the decision of the High Court of Australia in Lee v The Queen (2014) 308 ALR 252; and
1.2failing to grant a permanent stay of the prosecution on the grounds of an abuse of process.
Section 36 of the Magistrates Court Act
Section 36 of the Magistrates Court Act provides as follows:
(1)If a person is or would be aggrieved by one or more of the following -
(a)the failure of a Court officer to do any act or make any order or direction -
(i)on the ground that the officer is under a duty to do the act or make the order or direction; or
(ii)on any ground that might have justified an order of mandamus;
(b)an act, order or direction that a Court officer proposes to do or make -
(i)on the ground that it would be without jurisdiction or power or would be an abuse of process; or
(ii)on any ground that might have justified an order of prohibition;
(c)an act, order or direction done or made by a Court officer -
(i)on the ground that it was done or made without jurisdiction or power or is an abuse of process; or
(ii)on any ground that might have justified an order of certiorari,
the person may apply to the Supreme Court for an order (a review order) that requires the Court officer and any person who will be affected by the act, order or direction to satisfy the Supreme Court at a hearing that the act, order or direction should or should not be done or made or set aside, as the case requires.
(2)The procedure for making, and in relation to, an application under subsection (1) is to be prescribed by rules of court of the Supreme Court.
(3)On an application made under subsection (1) and rules of court of the Supreme Court, the Supreme Court may make any review order that is just, whether it has been applied for or not.
(4)If at the hearing required by a review order the Supreme Court is not satisfied in accordance with the review order, or if it is just to do so, it may -
(a)order that the act, order or direction be or not be done or made or set aside, as the case requires;
(b)grant any relief or remedy that could have been granted by way of a writ of mandamus, prohibition or certiorari;
(c)make any necessary consequential orders.
(5)On an application made under subsection (1) in respect of an act, order or direction, the Supreme Court may -
(a)if it considers that an appeal lies under the Criminal Appeals Act 2004 in respect of the act, order or direction, order the application to be treated as if it were such an appeal and deal with the matter accordingly;
(b)if it considers that an appeal lies under the Magistrates Court (Civil Proceedings) Act 2004 in respect of the act, order or direction, order the application to be treated as if it were such an appeal and remit the matter to the District Court to be dealt with accordingly.
(6)When dealing with an appeal under the Criminal Appeals Act 2004 the Supreme Court may make a review order and, if it does, may also make an order under subsection (4).
(7)If, when dealing with an appeal under the Magistrates Court (Civil Proceedings) Act 2004, the District Court considers that a review order ought to be made it may -
(a)remit the appeal to the Supreme Court under the District Court of Western Australia Act 1969 section 77; or
(b)adjourn the appeal to enable an application to be made to the Supreme Court -
(i)under subsection (1); or
(ii)under the District Court of Western Australia Act 1969 section 76.
(8)A Court officer, on being served with an order made under subsection (4), must obey the order.
The proper construction and operation of s 36 of the Magistrates Court Act was explained by McLure JA (Buss & Newnes JJA agreeing) in Rayney v AW.[5] The power in s 36 of the Magistrates Court Act is a judicial review power.[6] The power in s 36(4) to grant relief is only enlivened if one or more of the grounds listed in s 36(1)(a), (b) or (c) has been established.[7] A review order can only be made if the threshold for an error of a type identified in s 36(1)(a), (b) or (c) is satisfied.[8]
[5] Rayney v AW [2009] WASCA 203.
[6] Rayney v AW [27].
[7] Rayney v AW [28], [32], [34].
[8] Rayney v AW [31].
As to the threshold, I think the appropriate analogy for the test for determining whether a review order should issue is with an application for an order nisi.[9]
[9] Saldanha v Fujitsu Australia Ltd (No 2) [2011] WASC 360 [61] (Corboy J); Re Potter; Ex parte Coppin [2013] WASC 462 [29].
That means that it is necessary for Mr Stanton to establish, at least, an arguable case that an error of a type identified in s 36(1)(a),(b) or (c) was made.
In this case, Mr Stanton's counsel foreshadowed that if a review order were granted, he would move for a stay of the imminent trial in the Magistrates Court. In the circumstances, I propose to follow the approach adopted in many cases of deciding to make a review order (or order nisi) only if I am satisfied that the applicant's case has reasonable prospects of success.[10]
[10] Saldanha [61] ‑ [62]; Woodley v Minister for Indigenous Affairs [2009] WASC 251 [37] (Martin CJ); Seddon v Medical Assessment Panel [2011] WASC 237 [29] ‑ [31] (Edelman J).
As I will explain, the real issue in this application is the scope of s 36(1)(a), (b) and (c): what type of errors does it encompass?
The scope of errors encompassed by s 36(1)
I have set out Mr Stanton's grounds for the review order earlier in these reasons. Those grounds allege an error of law; they do not allege jurisdictional error. In oral submissions, Mr Stanton's counsel submitted that an error of law by the magistrate made in his reasons for decision would be grounds for relief under s 36(1)(a) or under s 36(1)(c). No submission was made in respect of s 36(1)(b). He submitted that it is not necessary to show any jurisdictional error by the magistrate in order to demonstrate an error of a type identified in s 36(1)(a), (b) or (c).
For the reasons that follow, I do not accept Mr Stanton's submissions in this respect, and consider that they do not have reasonable prospects of success. In my opinion, demonstration of an error of law is not sufficient to make out an error of a type identified in s 36(1)(a), (b) or (c), unless the error of law is on the face of the record. Generally, and in this case, the record does not include reasons for decision.
Section 36(1)(a) refers to the failure of a court to do an act or make an order or direction on the ground that the officer is under a duty to do the act or make the order or direction, or on any ground that might have justified a writ of mandamus. Mr Stanton submits that the magistrate failed to decide his stay application according to the law, when it was his duty to do so, and that is a ground that might have justified a writ of mandamus. In this way Mr Stanton seeks to invoke both subpar (i) and (ii) of s 36(1)(a).
In essence, s 36(1)(a) is addressed to a situation where the court fails to perform a duty. If the magistrate had refused to entertain the application, s 36(1)(a) may well have come into play. It does not come into play in circumstances where a magistrate makes a discretionary decision about which an applicant is aggrieved.
In the context of s 36(1)(a)(i) a magistrate cannot be said to be under a duty to decide each matter according to law. The corollary of Mr Stanton's construction of s 36(1)(a) is that any error of law by a magistrate means that the magistrate has failed to decide the matter according to law in accordance with the duty to do so. That means that any error of law would be a ground for a review order.
Such a construction of s 36(1)(a) would involve a very substantial expansion of the scope of judicial review of magistrates' decisions. In my view, it is clear that that is not the intention of s 36. As McLure JA observed in Rayney v AW,[11] at common law there are narrow grounds for the judicial review of decisions of inferior courts. The following passage from Craig v The State of South Australia[12] explains the position:
In contrast, the ordinary jurisdiction of a court of law encompasses authority to decide questions of law, as well as questions of fact, involved in matters which it has jurisdiction to determine. The identification of relevant issues, the formulation of relevant questions and the determination of what is and what is not relevant evidence are all routine steps in the discharge of that ordinary jurisdiction. Demonstrable mistake in the identification of such issues or the formulation of such questions will commonly involve error of law which may, if an appeal is available and is pursued, be corrected by an appellate court and, depending on the circumstances, found an order setting aside the order or decision of the inferior court. Such a mistake on the part of an inferior court entrusted with authority to identify, formulate and determine such issues and questions will not, however, ordinarily constitute jurisdictional error. Similarly, a failure by an inferior court to take into account some matter which it was, as a matter of law, required to take into account in determining a question within jurisdiction or reliance by such a court upon some irrelevant matter upon which it was, as a matter of law, not entitled to rely in determining such a question will not ordinarily involve jurisdictional error.
[11] Rayney v AW [26].
[12] Craig v The State of South Australia [1995] HCA 58; (1995) 184 CLR 163, 179 ‑ 180 (Brennan, Deane, Toohey, Gaudron & McHugh JJ).
The purpose of s 35 and s 36 of the Magistrates Court Act was to replace the common law prerogative writs with a statutory alternative applying in those situations in which the specified prerogative writs would have been available, but free of the technical requirements of prerogative writs.[13]
[13] Rayney v AW [27].
The nature of the error sufficient to give rise to the availability of judicial review is no mere technical requirement. Section 36 is not intended to effect a radical expansion of the grounds of review of a decision of a magistrate. Errors of law not evident on the face of the record can only be addressed through the normal appellate process.[14]
[14] Abbott v Magistrate Malley [2012] WASC 420 [13] (EM Heenan J); Stewart v City of Belmont [2013] WASC 366 [31] (Martin CJ).
A complaint as to the manner of the exercise of a discretion does not give rise to a ground for a writ of mandamus. As is said in Aronson and Groves Judicial Review of Administrative Action 'mandamus will not command the performance of a duty in a particular way if the respondent has a discretion as to how it should be performed'.[15]
[15] (5th ed, 2013) [13.100].
For these reasons, in my opinion, the contention that an error of law, without more, is an error of the type identified in s 36(1)(a) has no reasonable prospects of success.
In oral submissions Mr Stanton also relied on both sub paragraphs of s 36(1)(c).
First, he submits that the order of the magistrate was an abuse of process because the magistrate did not decide the application according to law. The expression 'abuse of process' in s 36 relates to the act of the magistrate, not an act of a party to the proceedings.[16] Mr Stanton's contention involves the startling proposition that any decision made by a court that involves an error of law is, thereby, itself an abuse of process. That contention is not arguable.
[16] Re Fortescue Metals Group Ltd; Ex parte Fortescue Metals Group Ltd [2010] WASC 88 [37] (McKechnie J).
Secondly, Mr Stanton submits that the order made by the magistrate to dismiss the application for a stay involved an error of law as revealed by his reasons, and that might have justified an order of certiorari under s 36(1)(c)(ii).
In my opinion, that contention has no reasonable prospects of success. A demonstration that the magistrate made an error of law in his reasons is not, in itself and without more, a ground that might have justified certiorari. Certiorari is available, relevantly, for jurisdictional error, or for error of law on the face of the record.[17] In the case of an inferior court such as the Magistrates Court, subject to contrary statutory provision, the reasons for decision are not part of the record unless a magistrate incorporates the reasons by reference to his or her order.[18] While the plurality in Kirk made some observations that may favour a more expansive view of what constitutes the record, their Honours pointed out that no party had sought leave to reopen Craig. Consequently, in my view, Craig remains authoritative.
[17] Craig v The State South Australia; Kirk v Industrial Court of New South Wales [2010] HCA 1; (2010) 239 CLR 531 [56] (French CJ, Gummow, Hayne, Crennan, Kiefel & Bell JJ); Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43; (2013) 252 CLR 480 [26] (the Court).
[18] Craig v The State of South Australia (182 ‑ 183); Re State Administrative Tribunal; Ex parte McCourt [2007] WASCA 125; (2007) 34 WAR 342 [22] (the Court); Seiffert v Prisoners Review Board [2011] WASCA 148 [181] ‑ [183] (Martin CJ).
There is nothing in the Magistrates Court Act, or in the magistrate's orders in this case, that takes the case out of that general position. The fact that under the Magistrates Court Act a magistrate must give reasons[19] does not reveal a statutory intention that those reasons form part of the record.[20] The existence of rights of appeal from decisions of a magistrate provides a sufficient explanation or justification for the requirement to give reasons.
[19] s 31.
[20] See by analogy , Re State Administrative Tribunal [22] ‑ [32]; Seiffert v Prisoners Review Board [181] ‑ [183].
For these reasons, in my opinion, it is not enough, in order to sustain a review order, for Mr Stanton to demonstrate that in his reasons for decision the magistrate arguably made an error of law. It is necessary for an applicant under s 36 to demonstrate a (arguable) jurisdictional error on the part of the magistrate.
As I have said, Mr Stanton's grounds and written submissions were framed in terms of identifying an alleged error of law. In oral submissions, Mr Stanton's counsel did not seek to identify any jurisdictional error on the part of the magistrate. In effect, he accepted that if it were necessary to demonstrate an arguable jurisdictional error, the application must fail.[21]
[21] ts 12.
In my view, counsel was correct to adopt that position. What was said by the High Court in Craig v The State of South Australia[22] demonstrates, by analogy, why that is so:
[The District Court Judge] possessed jurisdiction to hear and dispose of the appellant's application for a stay of proceedings. That jurisdiction encompassed the identification and determination of relevant questions of law and fact involved in deciding whether a trial in which the appellant was left without legal representation would be unfair and whether a stay should or should not be granted. Those questions included the question whether the appellant's inability to obtain legal representation should be seen as being 'through no fault on his ... part'. Like almost any question which arises for determination by a judge, that question of 'fault' can, once the facts are ascertained, be dressed in the garb of a question of law. Essentially, however, it is a question of fact involving an element of discretionary judgment. Regardless of whether it be viewed as a question of law or a mixed question of law and fact, however, its resolution lay within the primary authority of the trial judge. If [the District Court Judge] fell into error in assessing the effect of the majority judgment in Dietrich or in concluding that the appellant's inability to obtain legal representation was through no fault on his part, that error was within jurisdiction. It was not a jurisdictional error for the purposes of certiorari.
[22] Craig v The State of South Australia (186).
For these reasons, the application must be dismissed.
Discretionary considerations
If I had been satisfied there was an arguable case, there are nevertheless powerful discretionary reasons militating against the grant of a review order. First, Mr Stanton has delayed substantially in bringing this application. The decision the subject of the application was made in November 2014. Mr Stanton's solicitor has filed an affidavit of 24 September 2015 seeking to explain the delay. In the circumstances it is not necessary to address the contents of the affidavit.
Secondly, there is a wealth of judicial statements about the undesirability of judicial review proceedings being used to fragment criminal proceedings especially in circumstances where, if Mr Stanton is convicted, he will have a right of appeal.[23] Lee shows that an available ground of appeal would be that there was a miscarriage of justice arising from the circumstances said to justify the grant of a stay of the prosecution.
[23] See the cases collected in Chief Executive Officer of Customs v Jiang [2001] FCA 145; (2001) 111 FCR 395 [7] ‑ [9] (the Court); in the context of s 36 see Re Magistrates Court of Western Australia; Ex parte Mansell [2013] WASC 120 [12] (Hall J) and Director of Public Prosecutions (WA) v Peters [2010] WASC 139 [10] (EM Heenan J).
Given the conclusion I have reached about the need for jurisdictional error, it is not necessary to determine whether this is one of those exceptional cases where discretionary reasons would justify refusal of a review order.[24]
[24] Saldanha [116]; Blum v Boothman [2014] WASC 432 [19] ‑ [20] (Mitchell J).
If the question of a stay of the imminent trial had arisen, these matters would certainly have borne significantly on the discretionary decision of whether this court should grant a stay.
Conclusion
For these reasons, I would not grant a review order.
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