Styche v Bourke

[2025] ACTCA 5

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

COURT OF APPEAL

Case Title: 

Styche v Bourke

Citation: 

[2025] ACTCA 5

Hearing Date: 

15 August 2024

Decision Date: 

10 February 2025

Before: 

McCallum CJ, Mossop J and Ainslie-Wallace AJ

Decision: 

(1) The appeal is dismissed.

Catchwords: 

APPEAL – CRIMINAL LAW – Whether a decision “should not in law have been made” for the purposes of s 219D(c) of the

Magistrates Court Act 1930 (ACT) – whether failure to give adequate reasons means that decision “should not in law have

been made” – it does
APPEAL – HUMAN RIGHTS – Operation of right not to be tried

or punished more than once under s 24 of the Human Rights Act

2004 (ACT) – interpretation of Magistrates Court Act s 219D(c) –

provision for a prosecution review appeal either consistent with

s 24 because that right is only engaged upon “final” acquittal or

alternatively a reasonable limit upon a human right under s 28

APPEAL – CRIMINAL LAW – Whether primary judge erred in her interpretation and application of Liberato – possibility that Liberato

provided a basis for acquittal not a sufficient ground in

circumstances where magistrate’s reasons attended by legal

error

APPEAL – CRIMINAL LAW – Whether primary judge erred in not

exercising her discretion to refuse relief on the principle of double

jeopardy – whether rehearing in Magistrates Court would

constitute abuse of process where accused had been acquitted

at first instance – legislature has provided for a prosecution appeal and acquittal where there was an error of law – no abuse

of process

APPEAL – CRIMINAL LAW – Whether primary judge was in error

in declining to consider proviso in s 219F of the Magistrates Court

Act – the proviso provides for consideration of merits of the case

but does not require full assessment of facts when appeal is
limited to an error of law

Legislation Cited: 

Court of Petty Sessions Ordinance 1930 (ACT)
Crimes Act 1900 ss 60(1), 375, 475
Crimes Legislation Amendment Act 2008 (ACT)
Human Rights Act 2004 (ACT), ss 24, 28
Justices Act 1890 (Vic), s 141
Justices Act 1928 (Vic), s 150
Justices Act 1957 (Vic), s 155
Justices Act 1958 (Vic), s 155

Legislation Act 2001 (ACT), ss 139, 140, 141

Magistrates Court Act 1930 (ACT), ss 219B, 219D, 219F,
Divs 3.10.2, 3.10.3

Cases Cited: 

Bourke v Styche [2024] ACTSC 62; 21 ACTLR 86
Dahlstrom v Low (Unreported, Supreme Court of the Australian
Capital Territory, Gallop J, 1 July 1996)
Eastman v DPP (ACT) [2003] HCA 28; 214 CLR 318
Harlovich v Sebbens [2023] ACTSCFC 3; 20 ACTLR 237
Liberato v The Queen (1985) 159 CLR 507
Mark v Henshaw (1998) 85 FCR 555
Pell v The Queen [2020] HCA 12; 268 CLR 123
Priest v Cook (Unreported, Supreme Court of the Australian
Capital Territory, Kelly J, 22 September 1982)
Saunders v King (Unreported, Supreme Court of the Australian
Capital Territory, Blackburn J, 16 September 1974)
Taylor v Armour & Co Pty Ltd [1962] VR 346

Young v Paddle Bros Pty Ltd [1956] VLR 38

Texts Cited: 

Human Rights Committee, General Comment No 32: Article 14:
Right to equality before courts and tribunals and to a fair trial,
90th sess, UN Doc CCPR/C/GC/32 (23 August 2007)
Human Rights Committee, Views: Communication No
1310/2004, 92nd sess, UN Doc CCPR/C/92/D/1310/2004

(3 April 2008) (‘Babkin v Russian Federation’)

International Covenant on Civil and Political Rights, opened for
signature 19 December 1966, 999 UNTS 171 (entered into force
23 March 1976)
Stephen Treschel, Human Rights in Criminal Proceedings
(Oxford University Press, 2005)

Parties: 

Jordan Christopher Styche (Appellant)
Bridget Bourke (Respondent)

ACT Human Rights Commission (Intervener)

Representation: 

Counsel

J White SC (Appellant)
K McCann (Respondent)
S Fitzgerald (Intervener)

Solicitors

Kamy Saeedi Law (Appellant)

ACT Director of Public Prosecutions
ACT Human Rights Commission (Intervener)

File Number: 

ACTCA 5 of 2024

Decision Under Appeal: 

Court/Tribunal:	ACT Supreme Court
Before:	McWilliam J
Date of Decision:	12 March 2024
Case Title:	Bourke v Styche
Citation:	[2024] ACTSC 62

THE COURT 

Introduction 

1․ 

On 13 December 2022, a magistrate dismissed 10 out of 14 charges brought against the

appellant, Mr Jordan Christopher Styche. The prosecution appealed. On 12 March 2024,

a judge of the Supreme Court allowed the appeal, set aside the orders of the Magistrates

Court and remitted the proceedings to be heard by a different magistrate: Bourke v

Styche [2024] ACTSC 62; 21 ACTLR 86. Mr Styche now appeals against the decision of

the primary judge on the basis that her Honour erred in various ways.

Charges

2․	The 10 charges of committing an act of indecency without consent contrary to s 60(1) of
the Crimes Act 1900 (ACT), related to events alleged to have occurred over five days in
October 2020. They involved the appellant and six different female complainants. Each
complainant was a sales assistant who assisted the appellant when he was trying on
pants or tights in a changeroom. The appellant was alleged to have, by various means,
directed the attention of each sales assistant to his erect penis, or an object that looked
like an erect penis.
3․	The factual allegations that formed the basis of each of the 10 charges were described
in some detail by the primary judge. In summary, they were as follows:

(a) CAN 14405/2020 and CAN 14406/2020: on 28 October 2020, the appellant tried

on fluoro tights in a women’s activewear store in an outlet centre and walked

out of the changeroom gesturing towards his erect penis, possibly with a

prosthetic on it, to the first complainant.

(b) CAN 14407/2020: a second complainant, working at a different clothing store in

the same outlet centre, said that on either 28 or 29 October 2020, the appellant

tried on pants, asked for smaller sizes twice and stepped out of the changeroom

in front of the attendant while touching and grabbing his penis.

(c) CAN 14409/2020: a third complainant at another clothing store located within

the same outlet centre recounted that on 30 October 2020, the appellant tried

on a pair of women’s leather pants, and had an erection while pointing to his

penis and grabbing it in front of the complainant.

(d) CAN 14410/2020, CAN 14412/2020, CAN 1124/2022: a fourth complainant,

working at the same women’s activewear store as the first complainant but on

30 October 2020, said that the appellant asked for a pair of tights for an 80s

themed party. The appellant then stood over the fourth complainant with an

erect penis “right in [her] face”. The appellant later said that he would be back

on Saturday and asked if the complainant would be there, stating that if she

would not be it would be a “shame” to “miss another show”.

(e) CAN 14414/2020 and CAN 14415/2020: a fifth complainant was working in a

clothing store in the Canberra Centre on 2 November 2020. The appellant said

he was looking for a light-coloured pair of pants. When asking how the appellant

was going, the complainant saw the appellant with an erection showing through

the clothing. The appellant then asked questions as to whether the complainant

could see “it” and if it was noticeable, and also commented on the complainant’s

appearance and her relationship status.

(f) CAN 14417/2020: a sixth complainant on 2 November 2020 served the

appellant at a women’s activewear store in a shopping centre in Greenway. The

appellant asked to try on tights for an 80s themed party. The complainant picked

out a few pairs of tights and showed him to the changerooms. The complainant

offered the appellant more items to try after the appellant had returned wearing

a pair of shorts, asking for the complainant’s opinion. Later, when the appellant

was wearing a pair of pink tights, he visibly displayed an erection, standing in

an open stance and holding his shirt out of the way. The phone rang and the

complainant spoke to her manager. Security later arrived.

The proceedings before the primary judge

4․	The appeal to the primary judge was brought pursuant to Div 3.10.3 of the Magistrates
Court Act 1930 (ACT) (MC Act). Division 3.10.3 of the Act is entitled “Review appeals in
criminal matters” in contrast to Div 3.10.2, which is entitled “Appeals in criminal matters”.
Section 219B of the MC Act lists the decisions of the Magistrates Court or Childrens
Court from which a review appeal may be brought. It includes “an order dismissing an
information dealt with” under s 375 of the Crimes Act 1900 (ACT), which was the relevant
provision in the present case: MC Act s 219B(1)(a)(iii)(B).
5․	The grounds on which such a review appeal may be brought are set out in s 219D of the
MC Act, which provides:

219D Grounds for review

The Supreme Court may review a decision of the Magistrates Court under this division on any 1 or more of the following grounds:

(a)	that there was a prima facie case of error or mistake on the part of the Magistrates Court;
(b)	that the Magistrates Court did not have jurisdiction or authority to make the decision;
(c)	that the decision of the Magistrates Court should not in law have been made;
(d)	for a decision mentioned in section 219B (1) (d) or (e)—that, in the

circumstances of the case, the decision should not have been made;

(e) for a decision mentioned in section 219B (1) (f)—that the sentence or

penalty was manifestly inadequate or otherwise in error.

6․	The relevant provision for the purposes of the appeal before the primary judge was that
in paragraph (c), namely that “the decision … should not in law have been made”. The
contention of the Director before the primary judge was that the magistrate had failed to
give adequate reasons for his dismissal of the charges and that a failure to give reasons
meant that “the decision of the Magistrates Court should not in law have been made” for
the purposes of s 219D(c).

The decision of the primary judge

7․ The primary judge decided that:

(a) the appeal was competent as the ground of review in s 219D(c) was not

confined to jurisdictional error: J[48]-[54];

(b)	a failure to give reasons established an error of law: J[55]-[59];
(c)	the magistrate failed to give adequate reasons and hence an error of law was

established: J[114]-[124];

(d) there was no basis upon which to exercise the residual discretion to decline to

intervene: J[125]-[140]; and

(e) the proceedings should be remitted to the Magistrates Court to be heard by a

different magistrate: J[141]-[144].

Grounds of Appeal

8․ The grounds of the appeal are that:

a)	The learned judge erred in her interpretation of s219D(c);
b)	The learned judge erred in finding that the magistrate’s decision to find the appellant

not guilty was a decision which should not in law have been made;

c)	The learned judge erred in her interpretation and application of Liberato and the criminal standard of proof;
d)	The learned judge erred in failing to exercise her discretion to refuse the relief sought on the basis of the principle of double jeopardy;
e)	The learned judge erred in declining to consider the application of the proviso in s219F(5).

9․ It should be noted that no ground of appeal challenged the conclusions that:

(a)	appeals under s 219D(c) are not confined to jurisdictional error; and
(b)	the reasons given by the magistrate were inadequate and that the inadequacy

of the reasons constituted an error of law.

Grounds (a) and (b)

Submissions

10․	The submissions made on behalf of the appellant addressed appeal grounds (a) and (b)
together. The appellant contended that s 219D(c) was not enlivened because there was
a distinction between the decision of the Magistrates Court and the process by which the
decision had been made. A failure to give reasons related to the process rather than the
decision. The failure to give reasons did not demonstrate that the decision to find the
appellant not guilty should not have been made. As a consequence, the appellant
submitted that the primary judge erred when she held (J[51]) that “if there is a legal error
in the process by which that decision is made, then it is a decision that should not ‘in law’
have been made”. The appellant submitted that such an interpretation “would catch
decisions of which it cannot be said they should not in law have been made, but it can
be said that there was a deficit in the administration of the decision”.
11․	The respondent submitted, first, that the appellant’s argument ignored the language of
s 219D(c), which was “should not in law have been made” rather than “could not in law
have been made”. That was a textual indicator in favour of a broad interpretation. The
section was not limited to whether or not it “could” have been made, having regard to the
legal authority or power to make the ultimate decision, but whether it “should” in fact have
been made, having regard to the need to do so without legal error.
12․	Second, because a failure to give reasons was an error of law, the decision was one
which should not in law have been made.
13․	Third, examples of decisions which the appellant accepted fell within the scope of
s 219D(c) — applying the wrong elements of the offence or being under a
misapprehension as to the standard of proof — in fact illustrated the correctness of the
primary judge’s decision. Each of these was an error in the process by which an ultimate
decision was reached and hence fell within the scope of the paragraph.
14․	The Human Rights Commissioner, who was given leave to intervene, made submissions
directed to the operation of s 24 of the Human Rights Act 2004 (ACT) (HR Act). That
provides:

24 Right not to be tried or punished more than once

No-one may be tried or punished again for an offence for which they have already been finally convicted or acquitted in accordance with law.

15․	The Commissioner submitted that the words “in accordance with law” ought to be
interpreted as applying to the word “finally”: Human Rights Committee, Views:
Communication No 1310/2004, 92nd sess, UN Doc CCPR/C/92/D/1310/2004
(3 April 2008) (Babkin v Russian Federation) at [3.5]; Stephen Treschel, Human Rights
in Criminal Proceedings (Oxford University Press, 2005) at 390. That had the effect that
s 24 would not be avoided simply because there was a legal error in the conviction or
acquittal. However, the Commissioner did submit that, consistent with commentary and
decisions on art 14 para 7 of the International Covenant on Civil and Political Rights,
opened for signature 19 December 1996, 999 UNTS 171 (entered into force
23 March 1976) (ICCPR), the prohibition would not apply if a higher court quashes a
conviction and orders a retrial: Babkin v Russian Federation at [3.5]; Human Rights
Committee, General Comment No 32: Article 14: Right to equality before courts and
tribunals and to a fair trial, 90th sess, UN Doc CCPR/C/GC/32 (23 August 2007) at [56].
The Commissioner also pointed out that there is a difference between the source of
reasonable limits on the right as between the ICCPR and the HR Act as a result of the
existence of the express provision describing such limits in s 28 of the HR Act.

Decision

16․	The meaning to be given to the ground of review in s 219D(c) must be worked out in
accordance with the commands of the Legislation Act 2001 (ACT), in particular s 139,
as well as s 30 of the HR Act. Best achieving the purpose of the Act under s 139 of the
Legislation Act involves having regard to the provisions of the Act as a whole (s 140) and
permits regard to be had to material not forming part of the Act (s 141). The legislative
history of the relevant provisions may often indicate, for the purpose of s 139, the
purpose of the relevant provisions. So far as s 30 of the HR Act is concerned, it has room
to operate only once the purpose of the law has been worked out (“so far as it is possible
to do so consistently with its purpose”).
17․	The review provisions were inserted by amendment to what was then the Court of Petty
Sessions Ordinance 1930 (ACT) in 1972. They picked up the language used in earlier
Victorian legislation, including the Justices Act 1890 (Vic), s 141, Justices Act 1928 (Vic), s 150, Justices Act 1957 (Vic), s 155 and the Justices Act 1958 (Vic), s 155. In the 1958
Act, which was in force at the time of the 1972 amendment, the relevant provision was
s 155. The grounds of review did not extend to questions of fact. Rather, any such
challenge was treated in the same way as an appeal from the verdict of a jury: Young v
Paddle Bros Pty Ltd [1956] VLR 38 at 41 at 43; Taylor v Armour & Co Pty Ltd [1962] VR
346 at 351. As a result, it was not for the appeal court “to make up its own mind upon
the evidence”.
18․	This approach was followed in the ACT. In Saunders v King (Unreported, Supreme Court
of the Australian Capital Territory, Blackburn J, 16 September 1974) Blackburn J said (at
71) in relation to the expression “error or mistake”:

The error or mistake referred to in the section is in my opinion an error or mistake of law, or, possibly also, an error or mistake as to some material or undisputed fact, as where the Court misunderstands the evidence in a material respect, or fails to take account of an undisputed material fact, so that there is a certainty or high degree of probability that if the error had not

been made the result would have been different. I am not convinced that “error or mistake”

in this context includes error of fact at all; but if it does, I am clearly of the opinion that it

includes only errors of fact of the kind I have indicated.

19․	His Honour also said (at 73) that s 219F, which allowed further evidence to be called by
leave, was only applicable in an “exceptional case”.
20․	In Priest v Cook (Unreported, Supreme Court of the Australian Capital Territory, Kelly J,
22 September 1982), Kelly J said that the order to review provisions were “concerned
generally with questions of law” (at 15). As a consequence, his Honour, having found a
magistrate’s decision to have been wrong in law, declined to consider an alternative
factual basis upon which a decision of a magistrate could be upheld.

21․ Dahlstrom v Low (Unreported, Supreme Court of the Australian Capital Territory,

Gallop J, 1 July 1996) involved an application for review that relied upon there being “a

prima facie case of error or mistake” or alternatively “that the decision of the Magistrates

Court should not in law have been made” (at 2). The appeal was against the dismissal

of a charge by a magistrate. In that case, the actus reus had been established but the

magistrate could not be satisfied beyond reasonable doubt that the relevant mental

element was present. It was contended that this “amounted to a perverse finding and

that such a finding was an error of law” (at 7). Gallop J found that whether or not the

mental element was established in the circumstances was a question of fact and that

such a question should be treated in the same way as an appeal from the verdict of a

jury. Given the finding that the mental element was not established beyond reasonable

doubt was open to the magistrate on the evidence, it was not reviewable under

s 219C(1).

22․	In Mark v Henshaw (1998) 85 FCR 555 at 563, a Full Court of the Federal Court adopted
the earlier authorities as to the scope of appeals by way of order to review, saying:

An appeal to the Supreme Court of the Australian Capital Territory by way of order to review pursuant to Pt XI of the Act is not a rehearing. Nor is it an appeal on questions of fact. The error or mistake which has to be demonstrated pursuant to s 219C(1)(c) is confined to an error of law: Saunders v King (unreported, Supreme Court, ACT, Blackburn J, 16 September 1974); Priest v Cook (unreported, Supreme Court, ACT, Kelly J, 22 September 1982); Dahlstrom v Low (unreported, Supreme Court, ACT, Gallop J, 1 July 1996).

23․	The point to note about these previous authorities is that they make clear that the
provisions were confined to errors of law and did not generally permit any review of
findings of fact.
24․	The change from a process involving an order nisi (which reflected the process involved
with prerogative writs) to one which simply permitted orders only took place after the
decision in Mark. However, when that change was made in 2009 by the Crimes
Legislation Amendment Act 2008 (ACT), although the procedure was changed, the
grounds of review remained the same. Having regard to the line of authority outlined
above, the legislative intention must be understood to be to retain grounds of the scope
previously identified by the courts.

25․ One oddity that arose from the amendments made by the Crimes Legislation

Amendment Act is that, although the process for the granting of an order nisi as a

preliminary part of the process of review has been abolished, the ground of review in

s 219D(a) still refers to there being a “prima facie case of error or mistake”. The reference

to “prima facie” makes little sense in the context of a procedure that does not involve the

granting of an order nisi, as the existence of only a prima facie case of error would not

be sufficient to warrant the setting aside of the decision under review unless the Supreme

Court ultimately concluded that there was an error or mistake.

26․	The other point to note about the grounds of review is that, on any view, there is very
significant overlap between the various grounds. That is principally because ground (a),
which might have been interpreted as extending to errors of fact, has been interpreted
as being confined to errors of law and, as a consequence, overlaps very substantially
with grounds (b) and (c).
27․	The focus of the appellant’s grounds of appeal was on the scope of s 219D(c). The
appellant’s contention was that because reasons are something which accompany the
decision, as distinct from being part of the process leading up to the decision, an error of
law arising from the failure to give adequate reasons does not mean that “the decision
… should not in law have been made”.
28․	This contention can be addressed in two steps. The first step is to recognise that errors
in the process by which a decision is reached are within the scope of para (c). That is
because lawful decisions arise from processes defined by law and a decision which is
reached by a process that is contrary to law will generally be one which “should not in
law have been made”. This general proposition is consistent with the appellant’s
recognition that, for example, a failure to apply the correct burden of proof or the
misstatement of an element of the offence in question would both be errors which would
result in a decision that “should not in law have been made”.
29․	The second step is to recognise that a failure to give adequate reasons is in the same
category as, and cannot be distinguished from, other procedural errors. The submissions
made on behalf of the appellant were to the effect that the failure to give adequate
reasons did not demonstrate that the ultimate decision to dismiss the charges was one
that “should not in law have been made”. That was because, in the appellant’s
submission, the verdict was one which was reasonably open to the magistrate on the
evidence.
30․	However, the fact that a particular verdict was one which might reasonably be open on
the evidence does not exclude it from the category of decisions which “should not in law
have been made”. The submissions of the appellant proceeded as if there was, separate
to the legally required judicial process, a decision which was able to be identified as one
that should or should not “in law have been made”. It was by that route that the appellant
sought to argue that, notwithstanding a legal error, a particular decision was one which
would ultimately have been open to the magistrate.
31․	It is not possible to engage in such an exercise because there is no decision which should
in law have been made unless it is a decision that has been reached in accordance with
law. It is, therefore, not possible to consider whether a decision “should not in law have
been made” other than by reference to the requirements of the legal process governing
the reaching of that decision. This is illustrated by the decision of the High Court in
Eastman v DPP (ACT) [2003] HCA 28; 214 CLR 318. In that case, the issue was whether,
for the purposes of s 475 of the Crimes Act 1900 (ACT), a “doubt or question” as to Mr
Eastman’s guilt could be established by a doubt or question about his fitness to plead or
any other element of the process leading to his conviction. A Full Court of the Federal
Court had found that a “doubt or question” restricted to fitness to plead was not a doubt
as to guilt of that person as it did not relate to his guilt in fact. The High Court unanimously
found to the contrary, holding that a doubt about fitness to plead, or any other element
of the process to the extent it might have affected the proper determination of the
existence of guilt, could be a “doubt or question” for the purposes of the Act: see [21],
[128]-[129]. The position was most clearly explained in the separate judgment of
McHugh J (at [10]-[11]):

Even when the primary facts are admitted, the “guilt” of an accused person depends on the

law that has to be applied to those facts. Without applying the law to the facts as found or

admitted, “guilt” in a legal sense is a meaningless concept. …

In all these cases, it is fanciful to speak of “guilt” as being an entity that is independent of the jury's verdict. It is the conviction recording the jury's verdict that establishes the “guilt” of the prisoner. Like Bishop Berkeley who “maintained that material objects only exist through being perceived", the lawyer maintains that “guilt” exists in a criminal law context only when

it is perceived as the concomitant of a conviction. To assert otherwise is to deny the presumption of innocence, a presumption that operates until the entry of a conviction rebuts it.

(Footnote omitted.)

32․	The point being made is that guilt, in the context that was being considered, meant guilt
according to the criminal process, not guilt on some objective sense arising from proof
of the physical and mental elements of the offence separate from the process that the
criminal law prescribes.
33․	So too here. It is not possible to talk about a decision which was open to the magistrate
divorced from the legal process by which that decision was required by law to be
reached. That process involves the admissibility of evidence, the burden and standard
of proof, the satisfaction of the elements of the offence and all other components of a
criminal trial required by law. It is therefore inappropriate to posit as a test for the
application of s 219D(c) whether or not the verdict entered was correct or open. A
decision will be one which “should not in law have been made” if there is a legal error
which means that the order should not have been made.
34․	Where the legal error involved a failure to give adequate reasons for the decision, that
inadequacy arises because of the impossibility of properly determining the basis on
which the decision was reached. Once it is accepted that an error in the process of a
criminal trial may mean that a decision should not in law have been made, it must also
be the case that inadequate reasons which deny to a reviewing court knowledge of the
basis upon which a decision was reached must also mean that the decision should not
in law have been made. For example, it could not reasonably be contended that the
misunderstanding of the elements of an offence would indicate that a decision should
not in law have been made, yet exclude from that concept a decision where the reasons
were so inadequate that it was impossible to tell whether or not there was a
misunderstanding of the elements of the offence.
35․	A number of the submissions made on behalf of the appellant were directed to the
proposition that a narrow interpretation of s 219D(c) should be adopted so as to not
substantially expand the scope of review appeals available to the prosecution. The short
answer to that is that the horse has bolted. Although s 219D(c) does not extend to review
of factual issues, legal errors or mistakes have always been the subject of review under
the section. There is nothing in the text of s 219D(c) that would indicate that it should be
confined to some category of legal error but exclude others. An interpretation of para (c)
so as to include procedural errors and a failure to give reasons does not involve any
discernible expansion of the grounds of review. That grounds of review in paras (a)-(c)
may involve overlapping formulations expressed in the language of the 1890s reflects,
at the very least, the acquiescence of the Legislative Assembly despite amendments
having been subsequently made to the grounds originally incorporated into what is now
the MC Act in 1972.
36․	Having regard to the fact that a purpose of s 219D(c) is to provide for a prosecution
appeal against an acquittal which involves an error of law, s 30 of the HR Act has no
relevant work to do. The provision of a prosecution appeal is either consistent with s 24
because that right is only engaged once the conviction or acquittal becomes final in the
sense of no longer being subject to an appeal provided for by law or, alternatively, the
provision of a prosecution appeal is a reasonable limit upon that entitlement provided for
by s 28.

Ground (c)

Submissions

37․	This ground asserted an error in the interpretation and application of the decision in
Liberato v The Queen (1985) 159 CLR 507. The appellant objected to two passages in
her Honour’s reasons. The first is at J[105], where her Honour said:

It was not sufficient for the magistrate to say that he was unable to reject the respondent’s

account of events in circumstances where there was no explanation of why, having found each complainant to be both credible and reliable in their accounts, he could not reject the

respondent’s account as being reasonably true. The most the magistrate appears to have

done is simply considered the respondent’s evidence alone and asked himself whether it

was plausible.

38․ The second is at J[121] where her Honour said:

The magistrate then determined that he was “unable to reject” the respondent’s “account of

events”. Again, it is not discernible from the global approach taken what that meant in

circumstances where each complainant had been found to be credible and reliable.

39․	The appellant submitted that Liberato meant that if the defendant’s version was plausible
then there must be an acquittal. It was entirely possible that the magistrate could find the
complainants to be credible and reliable and yet have a doubt about the appellant’s guilt.
That was said to be illustrated by the decision in Pell v The Queen [2020] HCA 12; 268
CLR 123. The appellant submitted that “[t]he primary judge’s key criticism of the
approach of the magistrate was accordingly based on a misunderstanding of the relevant
principles”. The submission was that it was not necessary for the magistrate to explain
why, having found each complainant to be both credible and reliable, he could not reject
the respondent’s account. It was said that the primary judge’s reference to cases which
articulated the need for reasons on a point critical to the contest between the parties was
not appropriate in criminal cases because of the burden that lay upon the prosecution.
The appellant contended that the primary judge’s approach to the magistrate’s reasons
was based on a misunderstanding of the relevant principles and correspondingly that the
magistrate’s approach, based upon Liberato, was not in error.
40․	The respondent submitted that the passage at J[121] followed the primary judge’s
explanation as to why the magistrate’s reasons were in error. For each charge, there
was a direct and intractable conflict between the evidence of the complainant and the
appellant. The reasons did not include any finding about what conduct the magistrate
accepted occurred or did not occur and hence what each complainant was honest and
reliable about. In the absence of any analysis of the prosecution case and any analysis
of the evidence of the appellant against the evidence as a whole, it was impossible to
understand why the magistrate concluded that the respondent’s evidence might
reasonably be true. There was no explanation as to why, despite the cumulative force of
the evidence in the prosecution case and accepting that each complainant was reliable
and honest in their account, the magistrate could not reject the appellant’s account as
being reasonably possibly true.
41․	Finally, even if there was some misunderstanding of Liberato, the ground of appeal would
not go anywhere in circumstances where there was no ground of appeal challenging the
primary judge’s finding that the reasons were inadequate.

Decision

42․	Of the two passages set out above (J[105] and J[121]), the first is only a partial quote of
what the primary judge actually said. The quoted passage falls under the heading “The
appellant’s submissions”. The first sentence of J[105] containing the quoted passage
was:

The appellant argued that the duty to give reasons was not satisfied by providing bare,

unexplained conclusions that the respondent’s evidence could not be rejected.

43․	Contrary to the appellant’s submissions, the passage was merely reciting an argument
put forward by the respondent, the appellant below, and was not an instance of the
primary judge recording her own conclusions.
44․	That leaves, as a basis for the ground of appeal, the second passage quoted above.
That passage occurred in the context of a discussion of the various ways in which the
reasons were inadequate. In summary, the primary judge found:

(a) The reasons did not include any specific reference to what the conduct alleged

was for each charge; the global approach meant that the reasons did not

disclose what conduct the magistrate accepted each complainant was honest

and reliable about: J[117].

(b) These were fundamental findings on issues critical to resolving the first element

of each charge: J[118].

(c) The magistrate recorded the issue as being whether the appellant’s penis was

not erect or whether he touched his penis in a sexual manner, but that was only

part of the conduct alleged and resulted in the magistrate not directing his

attention to the totality of the conduct the subject of each charge: J[119].

(d) The magistrate referred to the variety of descriptions of the appellant’s penis as

giving rise to a difficulty but did not discuss the fact that the conduct that each

complainant described occurred on different days, in different stores, in different

clothing and that not all accounts included the allegation that the appellant had

used a phallic device: J[120].

(e) It was not discernible from the reasons what the magistrate’s reference to being

“unable to reject” the appellant’s “account of events” meant: J[121].

(f) The submissions of the appellant (respondent before the primary judge) which

were said to be “comprehensive” did not grapple with any factual conflict

between the parties at all: J[122].

(g) The rolled-up approach also affected the tendency evidence, which did not

depend upon whether the appellant’s penis was erect or whether he used a

phallic device at any point: J[123].

(h) The magistrate failed to appreciate the import of the tendency evidence and,

although reasons were given as to why it was rejected, those reasons did not

“provide a transparent pathway or disclose that the tendency evidence that was

actually before the court below had been taken into account”: J[123].

(i)       As a result, the reasons did not state the findings of fact or expose the reasons

for decision so as to enable a proper understanding of the basis upon which the

findings of the court were reached: J[124].

45․	Having regard to the reasons given by the primary judge as summarised above, it is clear
that there was no misunderstanding of the principle derived from the decision in Liberato.
The proposition that if an accused’s version of events, which is consistent with
innocence, cannot be rejected beyond reasonable doubt then an acquittal must follow,
does not address the defects identified by the primary judge. Each of those defects
remain. That is not to deny that it may have been possible for the magistrate to ultimately
have concluded that, because of the inability of the court to reject specific aspects of the
evidence given by the appellant, the principle in Liberato required his acquittal. However,
that possibility did not avoid the requirement for the giving of reasons which were
adequate in the circumstances of the case.

Ground (d)

Submissions

46․	This ground of appeal asserts that the primary judge erred in the exercise of her
discretion because she ought to have refused the relief sought on the basis of the
principle of double jeopardy.
47․	The appellant submitted that “the re-hearing of the matter would constitute an abuse of
process to which the court should not contribute” or that “to order a re-hearing would be
to impeach the earlier acquittal won by the respondent”. The appellant placed emphasis
on the fact that the appellant had gone into evidence and hence exposed his defence.
Having done so “he won an acquittal that was clearly open on the evidence”. On a retrial,
the fact that the defendant had exposed his defence would be a considerable forensic
advantage to the prosecution.
48․	The respondent pointed to the reasons of the primary judge in which she concluded that
remittal of the proceedings following a successful challenge pursuant to s 219B was
authorised by statute and could not be described as vexatious, oppressive or for an
improper purpose so as to amount to an abuse of process.
49․	The respondent submitted that, although double jeopardy considerations may be taken
into account, it would be erroneous to deny relief simply because an offender would be
required to face a further hearing. That would frustrate the purpose of the legislation
which, by permitting a prosecution appeal, abrogated the rule against double jeopardy.

Decision

50․	It is not possible to accept the proposition that a remittal for rehearing of a criminal charge
after a successful prosecution appeal under Div 3.10.3 would constitute an abuse of the
process of the Magistrates Court. In circumstances where the legislature has provided
for a prosecution appeal and has expressly permitted (s 219F(2)(d)(i)) the remittal of the
proceedings to the Magistrates Court for rehearing, that course of itself could not
constitute an abuse of the process of the Magistrates Court. The legislature has
specifically contemplated and legislatively authorised the exposure of an accused person
to jeopardy again as a result of a decision of the Magistrates Court being quashed or set
aside and the proceedings remitted.

51․ The circumstances of this case do not require any departure from that general

proposition. There was nothing about the conduct of the proceedings below or the

anticipated future conduct of the proceedings that would allow an order for remittal to be

characterised as countenancing or requiring an abuse of the process of the Magistrates

Court. The fact that the matter might be required to be reheard, after a trial at which the

appellant gave evidence and an acquittal that involved an error of law, is simply a

consequence of the statutory scheme.

Ground (e)

Submissions

52․	This ground asserts that the primary judge declined to consider the application of the
proviso in s 219F(5) and that this constituted an error.
53․	The submission below was that, because the dismissal of the charges was open to the
magistrate on the evidence, no substantial miscarriage of justice had actually occurred.
54․	The appellant contended that the primary judge, in her reasons at J[140], had refused to
embark upon consideration of the proviso. The appellant submitted that if successful
upon this ground the matter should be remitted to the Supreme Court differently
constituted for consideration of the proviso. That would then allow for consideration of
the 15 pages of written submissions about the facts of the case that had been put before
the primary judge.
55․	The respondent submitted that so far as s 219F(5) was concerned, the confined nature
of the appeal and the error found by the primary judge would make it inappropriate for
the court to embark upon a detailed process of consideration of the merits which would
amount to performing the role of a trier of fact at first instance. The respondent submitted
that, as the magistrate had made no findings on critical issues in dispute, there had been a significant failure in the exercise of judicial power, and that constituted a substantial
miscarriage of justice in the circumstances. As the prosecution had not contributed to
the magistrate’s error and it was not intended to bring a different charge based upon the
same facts, such matters did not provide reasons to refuse relief. The fact that the
appellant had made a forensic choice did not render any further hearing of the charges
unfair. The respondent submitted that there were no compelling reasons why the primary
judge ought to have refused relief and, hence, no error was demonstrated.

Decision

56․	Having found error, the powers of the Supreme Court are set out in s 219F. Harlovich v
Sebbens [2023] ACTSCFC 3; 20 ACTLR 237 at [84] established that the discretions in
ss 219F(1) and (5) are “broad and complementary discretions which should both be
considered by the Supreme Court after any conclusion that error is established” and that
they provide “separate, overlapping, discretions to dismiss” a prosecution appeal.

57․ After having dealt with the submissions concerning the exercise of the residual

discretion, the primary judge turned to the submissions that involved a detailed analysis

of the evidence in the case. Of this her Honour said:

138. Finally, in the event that the review appeal succeeded, the respondent invited the Court to embark upon the ultimate merits of the decision, providing what he described was a comprehensive analysis of the evidence in the case.

139. I note what was said in Wolter v Broomhall [2023] ACTSC 331 (Wolter) at [87]:

Where an appeal is by way of rehearing, a finding of a failure to give reasons will not usually result in the setting aside of the decision below if the appellate court is otherwise satisfied that the decision of the court below was correct: New South Wales

Police Force v Winter [2011] NSWCA 330 at [89]-[90]. …

140. By contrast, this was a review appeal. The residual discretion does provide for consideration of the merits of the case, but it is a step too far as part of that exercise on a review appeal for error of law for the Court to proceed to review the evidence in the matter. It would require the drawing of inferences of fact with a view to ascertaining whether the same result would have been inevitable, and thus no miscarriage of justice occurred. The confined nature of the review and the nature of the error is such that the matter should be

remitted for further hearing and factual findings to be made in the Magistrates Court. This is

not a case where it is appropriate to exercise the discretion.

58․	In this passage, her Honour recognised that the residual discretion does provide for
consideration of the merits of the case. However, in circumstances where the exercise
required on a review appeal was to determine the existence of an error of law, it was not
appropriate for the court to review the evidence and draw for itself any inferences of fact
in order to reach a view as to whether the same result would have been inevitable, with
the consequence that no miscarriage of justice occurred. Her Honour considered that the confined nature of the review meant that further hearing and factual findings should
be made in the Magistrates Court. This approach is consistent with that of Kelly J in
Priest v Cook at 15.
59․	It is clear from her Honour’s reasons that she was ultimately considering the question of
whether, for the purposes of s 219F(5), the court should engage in a task of fact-finding
in order to determine whether there was no substantial miscarriage of justice
notwithstanding the error that the court had found. Because her Honour was addressing
the issue raised by s 219F(5), it cannot be said that she “refused even to embark” upon
consideration of the proviso. What her Honour did do was decline to engage in a detailed
fact-finding exercise in order to predict the ultimate outcome of the case and use that to
reach a conclusion that there was no miscarriage of justice because an acquittal was the
correct outcome in the circumstances of the case.
60․	Where it is raised, the possible application of s 219F(5) needs to be considered on a
review appeal. It remains a discretionary power (“may”) to be exercised when the court
reaches a particular state of mind (“if the court considers that”). It is true that, if the court
reaches the relevant state of mind, the discretion will be exercised in favour of dismissing
the appeal. However, that does not compel a review of every aspect of the case in order
to reach that state of mind.
61․	That review appeals are generally limited to questions of law (as to which see [23] above)
is relevant to the application of the proviso. There may be circumstances in which,
notwithstanding the existence of an error of law, where it can be discerned having regard
to the findings of fact or evidence in the court below, no substantial miscarriage of justice
has occurred. However, the existence of the power in s 219F(5) does not mandate that
the judge conduct a detailed review of the evidence in the case in order to determine
whether or not there has been no substantial miscarriage of justice. To require that would
be to substantially alter the nature of the appeal provided by the grounds specified in
s 219D and turn a limited review based upon legal error into a substantial factual
exercise, in circumstances where the appeal judge has none of the advantages of the
magistrate who conducted the trial. It was clearly open to the primary judge to decline to
conduct the kind of detailed factual review contemplated by the intricately crafted 15
pages of written submissions that were put forward about the evidence before the
magistrate. This ground of appeal is not made out.

Disposition

62․	Each of the grounds of appeal having been rejected, the appeal must be dismissed.
63․	In the event that the appellant succeeded on the appeal, he made submissions which
sought an order for costs in his favour. In circumstances where he was unsuccessful in
the appeal, he simply sought that there be no order as to costs against him. In the event
that the appeal was dismissed, the respondent did not seek costs. In those
circumstances, it is not necessary to give any consideration to the submissions as to
whether the court has power to make an order for costs on an appeal such as this, and
it is appropriate to make no order as to costs.
Order
64․	The order of the Court is:

(1) The appeal is dismissed.

I certify that the preceding sixty-four [64] numbered paragraphs are a true copy of the Reasons for Judgment of the Court.

Associate:

Date: 10 February 2025