R v Kenneth Edward Sagacio; David Geoffrey Tompsett and Michael Ward Ex Parte Andrew John Katelaris [1990] ACTSC 15 (27 April 1990)

SUPREME COURT OF THE ACT

THE QUEEN v. KENNETH EDWARD SAGACIO; DAVID GEOFFREY TOMPSETT and MICHAEL WARD
EX PARTE ANDREW JOHN KATELARIS
S.C. No. 447 of 1989
Prerogative Writs

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Kelly J.(1)

CATCHWORDS

Prerogative Writs - order absolute for certiorari previously made quashing convictions recorded against Prosecutor - fresh informations replicating earlier informations and charges laid - application by Prosecutor for prohibition - whether order for certiorari amounted to a discharge or acquittal of the Prosecutor in respect of the offences charged - whether convictions void or voidable - whether rule against double jeopardy applicable - whether entry upon hearing on merits by magistrate merely error of law and hence within jurisdiction

Words and Phrases - Meaning of "jurisdiction" considered

Parisienne Basket Shoes Pty Limited v Whyte [1938] HCA 7; (1937) 59 CLR 369

Broome v Chenoweth [1946] HCA 53; (1946) 73 CLR 583

Davern v Messel [1984] HCA 34; (1984) 155 CLR 21

Crane v The Director of Public Prosecutions (1921) 2 AC 299

R v Nat Bell Liquors, Limited (1922) 2 AC 128

In re Racal Communications Ltd [1980] UKHL 5; (1981) AC 374

R v Dorking Justices, Ex parte Harrington (1984) 1 AC 743

Re Daws (1838) 8 Ad and El 936; 112 ER 1095

R v Bolton 1 QB 66; 113 ER 1054

R v Drury (1849) 3 Car and K 193; 175 ER 517

R v The Small Claims Tribunal and Syme Ex Parte Barwiner Nominees Pty Ltd (1975) VR 831

France v Kraft (1985) 39 SASR 272

Walker v Baehnk (No. 2) (1987) 44 SASR 380

R v Rochow (1983) Qd R 184

The Queen v Hughes (1879) 4 QBD 614

Ex parte Wake (1883) 11 QBD 291

R v Bradley (1894) 70 LT(NS) 379

R v Marsham Ex Parte Pethick Lawrence (1912) 2 KB 362

R v Simpson (1914) 1 KB 66

Rex v Wakefield (1918) 1 KB 216

R v Crane (1920) 3 KB 236

Bannister v Clarke (1920) 3 KB 598

Stefani v John (1948) 1 KB 158

R v West (1964) 1 QB 15

The Queen v The Justices of Antrim (1895) 2 IR 603

R (M'Grath) v Chairman and Justices of Clare (1905) 2 IR 510

The King (Hastings) v Justices of Galway (1906) 2 IR 499

R v Mahony (1910) 2 IR 695

Friedland M L - Double Jeopardy (1969)

Sykes, Lanham and Tracey - General Principles of Administrative Law 3rd Edn

HEARING

CANBERRA
27:4:1990

Counsel for 1st Respondent: Mr B Taggart

Instructing solicitor: Director of Public Prosecutions

Counsel for 2nd Respondent: Ms M Saw

Instructing solicitor: Australian Government Solicitor

Counsel for Prosecutor: Dr D O'Connor

Instructing solicitor: Messrs Macphillamy Cummins and Gibson

ORDER

1. The order nisi made herein be discharged.

2. The order staying proceedings in respect of the informations numbered 88/17399 - 88/17413 and the charges numbered 89/4300 - 89/4309 be discharged.

3. The Prosecutor pay the respondents' costs to be taxed.

DECISION

This is an application to make absolute an Order Nisi for Prohibition granted by his Honour the Chief Justice on 28 July 1989.

2. The Order Nisi sought an order prohibiting Mr M Ward, Magistrate, the second respondent, or any other Magistrate, from further hearing a number of informations and charges. The first respondnts laid the informations and charges against the Prosecutor. The second respondent appeared by counsel to agree to abide by the order of the Court and was excused further attendance. I set out the relevant part of the Order Nisi:-
"...IT IS ORDERED that the first and second

respondents show cause before the Supreme Court
of the Australian Capital Territory...why an
order should not be made prohibiting Mr M Ward,
Magistrate, or any other Magistrate from further
hearing informations numbered 88/17399 to
88/17413 and charges numbered 89/4300 to 89/4309
brought under the Poisons and Narcotic Drugs Act
1978 against the Prosecutor on the following ground:-
(1) That the Magistrates Court has no
jurisdiction to hear and determine the
informations and charges. These
informations and charges are in respect of
matters that have previously been before the
Magistrates Court which Court had
jurisdiction in respect of the offences
charged by (virtue) of the Magistrates Court
(Ordinance) 1930 and the Crimes Act (NSW)
1900 as applicable to the Australian Capital
Territory when convictions were entered in
respect of them. The said convictions were
then quashed by this Honourable Court by a Writ
of Certiorari, made absolute on 15 January (1988)."

(The words and figures appearing in square brackets are corrections of obvious errors in the Order Nisi as settled.)

3. The history of the matter to 15 January 1988 appears in the reasons given by Gallop J when he made absolute an Order Nisi for Certiorari which had been granted on 27 August 1987. I find the following facts on the basis of that history and those reasons.

4. The Prosecutor appeared before Magistrate Nicholl in the Magistrates Court, Canberra on 4 May 1987 in answer to a summons returnable that day in respect of Informataion No. 87/15135 charging him with an offence of failing to keep a register of drugs of addiction contrary to s.28(5) of the Poisons and Narcotic Drugs Ordinance (as it then was) 1978 ("the Ordinance"). The Prosecutor was unrepresented and appeared in person while the informant was legally represented.

5. When the Prosecutor arrived at Court on 4 May 1987, he was told by a Court Officer that a number of other charges were to be preferred against him. He was shown a series of documents which appeared to be in the form of informations and summonses and which related to alleged offences against s.6(1) of the Ordinance which creates an offence of administering a Schedule 8 substance to one's self. That Schedule lists a number of drugs including morphine and cocaine.

6. As appears from photocopies of the bench sheets in respect of each of the informations annexed to the Affidavit of William Mark Redpath, sworn 26 July 1989 and filed in this matter, the Prosecutor was charged that between 31 December 1985 and 19 July 1986, contrary to s.28(5) of the Ordinance, he failed to keep a register of drugs of addiction. The remaining photocopies relate to fourteen informations, all charging offences against s.6(1) of the Ordinance. The first ten are in identical terms and charged that the Prosecutor,

"...in the Australian Capital Territory between
the 31st day of December in the year 1985, and
the 20th day of December in the year 1986, did
administer a Schedule 8 substance, to wit,
morphine, to himself."

The next three informations charged that the Prosecutor,

"...in the Australian Capital Territory between
the 13th day of July in the year 1986 and the
20th day of December in the year 1986, did
administer a Schedule 8 substance, to wit,
cocaine, to himself",
while the last charged that he administered cocaine to
himself in the ACT between 15 October 1986 and
20 December 1986.

When the matters were called on before the learned Magistrate some debate, in which counsel for the informant took part, ensued between the Magistrate and the Prosecutor. The Prosecutor was not formally charged with the offences set out in the informations but indicated that he was prepared to plead guilty to them. Thereupon the learned Magistrate said,

"Now, given that you have got the material in the
record of interview which (is) the basis on which
these summonses - or these charges have been
preferred, do you not have sufficient to enable
you to know whether you wish to plead guilty or
not guilty to these ten charges of administering
morphine and the four counts of administering
cocaine?"

The informant said,

"I do intend to plead guilty when it is ---."

The Magistrate replied,

"Well, you plead guilty. Now, are you - wishing
the matter to be dealt with today?"

The Prosecutor replied,

"If possible."

Thereupon the learned Magistrate said,

"All right. Well, very well. All right. Well,
I will hear the supporting material."
Gallop J said at p 6 of his Reasons,
"In his Affidavit, the Prosecutor states that at
no stage was he ever charged with any of the
particular offences, and further that he had
intended to plead guilty to some of the offences
but it was not possible for him to understand
what these charges were and the dates on which
the alleged offences were said to have occurred."

7. Gallop J granted the order for certiorari on two grounds. The first was that all the offences alleged against the Prosecutor were indictable offences by virtue of the operation of s.33D of the Interpretation Act 1967 and accordingly, because of the provisions of s.477 of the Crimes Act 1900 of the state of New South Wales in its application to the Territory ("the Act"), could only be disposed of if the Prosecutor had consented to their being so disposed of. Section 477 (7) of the Act provides, inter alia, that:-

"Where -
(a) the Court accepts a plea of guilty to a
charge;
(b) the Court is of the opinion that the case
can properly be disposed of summarily;
(c) the defendant has consented to its being so
disposed of,
the Court may sentence or otherwise deal with the
defendant according to law."

8. Gallop J held that since the Prosecutor had not consented to the summary disposal of the charges, the learned Magistrate had no jurisdiction so to dispose of them. The convictions were accordingly recorded without jurisdiction and had to be quashed.

9. He found also that because the Prosecutor did not plead guilty in clear and unambiguous terms to the charges, the convictions should be quashed on that ground as well.

10. From the affidavit of William Mark Redpath, affirmed 26 July 1989, I find that on 18 August 1988, fifteen further informations were laid against the Prosecutor. Fourteen alleged a contravention against s.6(1) of the Ordinance. Of these, ten alleged that between 31 December 1985 and 20 December 1986 he administered morphine to himself. On their face, therefore, they were identical with ten of the informations, the convictions in respect of which were quashed by Gallop J. Four alleged that between 31 December 1985 and 20 December 1986 he administered cocaine to himself. These differ, of course, from the earlier informations alleging self administration of cocaine in that a different period during which the four offences are alleged to have occurred was given. The fifteenth information alleged a contravention of s.28(2), charging that the Prosecutor between 31 December 1985 and 19 July 1986, being a person who had lawful authority to supply a Schedule 8 substance, morphine, to a person, did fail to keep a register of drugs of addiction. The offence alleged was therefore the same as that in respect of the allegation of a contravention of s.28(5) of the Ordinance in respect of which the conviction recorded was quashed by Gallop J.

11. Before me, counsel for the Prosecutor contended that since Gallop J had found that

"the Magistrate had no jurisdiction to hear and
determine the offences charges except pursuant to
s.477 of the Act"

that finding supported the view that the Magistrate had had jurisdiction pursuant to s.477. In fact, his Honour made no such finding in so many words as that set out above although certainly the effect of what he found to be the first ground for quashing the convictions was to that effect.

12. Counsel then submitted:-

"(a) it is part of the jurisdiction of a Court to
decide questions of law as well as questions
of fact;
(b) the learned Magistrate's error was an error
of law in that he had jurisdiction to decide
the manner of exercise of his power (i.e.
whether he needed to call in aid s.477 of
the Act);
(c) it is not relevant to the existence of
jurisdiction that a Magistrate goes wrong in
his exercise of that jurisdiction;
(d) as a consequence of the learned Magistrate's
error of law in the sense referred to, the
Magistrate necessarily fell into error in
the exercise of his jurisdiction. Having
decided that s.477 need not be called in aid
in the exercise of his jurisdiction, he then
failed to offer an election to the defendant
(Prosecutor);
(e) that error did not deprive the learned
Magistrate of jurisdiction retrospectively
but led to error of law on the face of the
record;
(f) Gallop J's order that a Writ of Certiorari
should issue indicated that his Honour did
not intend to find want of jurisdiction
because had he done so, the appropriate
remedy would have been the issue of a Writ
of Prohibition on the ground that the
proceedings before the learned Magistrate
were coram non judice;
(g) that being the case, the quashing of the
convictions discharged the Prosecutor; and
(h) the fresh charges now brought place the
Prosecutor in double jeopardy."

13. Counsel first cited In re Racal Communications Ltd [1980] UKHL 5; (1981) AC 374. In that case the Court of Appeal, dealing with a provision which stated that the decision of a Judge of the High Court on an application under the relevant section should not be appellable, reversed the decision of Vinelott J, holding that it had jurisdiction to do so because he had made an error in law which went to the jurisdiction. At pp 382-3 Lord Diplock said,

"I turn next to the question of the availability
of judicial review instead of appeal as a means
of correcting mistakes of law made by a court of
law as distinct from an administrative tribunal
or other administrative authority, however
described, when it is exercising quasi-judicial
functions. In Anisminic [1968] UKHL 6; (1969) 2 AC 147 this
House was concerned only with decisions of
administrative tribunals. Nothing I say is
intended to detract from the breadth of the scope
of application to administrative tribunals of the
principles laid down in that case...It proceeds
on the presumption that where Parliament confers
on an administrative tribunal or authority, as
distinct from a court of law, power to decide
particular questions defined by the Act
conferring the power, Parliament intends to
confine that power to answering the question as
it has been so defined and if there has been
any doubt as to what that question is, this is a
matter for courts of law to resolve in fulfilment
of their constitutional role as interpreters of
the written law and expounders of the common law
and rules of equity. So if the administrative
tribunal or authority have asked themselves the
wrong question and answered that, they have done
something that the Act does not empower them to
do and their decision is a nullity...The
break-through made by Anisminic [1968] UKHL 6; (1969) 2 AC 147
was that, as respects administrative tribunals
and authorities, the old distinction between
errors of law that went to jurisdiction and
errors of law that did not, was for practical
purposes abolished. Any error of law that could
be shown to have been made by them in the course
of reaching their decision on matters of fact or
of administrative policy would result in their
having asked themselves the wrong question with
the result that the decision they reached would
be a nullity...
But there is no similar presumption that where a
decision-making power is conferred by statute
upon a court of law, Parliament did not intend to
confer upon it power to decide questions of law
as well as questions of fact. Whether it did or
not and, in the case of inferior courts, what
limits are imposed on the kinds of questions of
law they are empowered to decide, depends upon
the construction of the statute unencumbered by
any such presumption. In the case of inferior
courts where the decision of the court is made
final and conclusive by the statute, this may
involve the survival of those subtle distinctions
formerly drawn between errors of law which go to
jurisdiction and errors of law which do not that
did so much to confuse English administrative law
before Anisminic [1968] UKHL 6; (1969) 2 AC 147; but upon any
application for judicial review of a decision of
an inferior court in a matter which involves, as
so many do, interrelated questions of law, fact
and degree the superior court conducting the
review should not be astute to hold that
Parliament did not intend the inferior court to
have jurisdiction to decide for itself the
meaning of ordinary words used in the statute to
define the question which it has to decide."

At p 384 his Lordship said,
"There is in my view, however, also an obvious
distinction between jurisdiction conferred by a
statute on a court of law of limited jurisdiction
to decide a defined question finally and
conclusively or unappealably, and a similar
jurisdiction conferred on the High Court or a
judge of the High Court acting in his judicial
capacity. The High Court is not a court of
limited jurisdiction and its constitutional role
includes the interpretation of written laws.
There is thus no room for the inference that
Parliament did not intend the High Court or the
judge of the High Court acting in his judicial
capacity to be entitled and, indeed, required to
construe the words of the statute by which the
question submitted to his decision was defined.
There is simply no room for error going to his
jurisdiction, nor, as is conceded by counsel for
the respondent, is there any room for judicial
review. Judicial review is available as a remedy
for mistakes of law made by inferior courts and
tribunals only."

14. Counsel submitted that the law is that courts of law are in a different category from administrative tribunals in that an inferior court has power to decide and interpret legislation empowering it to act and that if it errs in such an interpretation the error is on a question of law only, a question which the court is empowered to decide. It would follow, as I understood counsel's submission, that if it made an error in arrogating to itself a jurisdiction which it did not in fact possess that error went only to a question of law and did not vitiate the learned Magistrate's decision.

15. It seems to me that the submission fails to take account of the ambiguity latent in the word "jurisdiction". Undoubtedly, using the word in one sense, the Magistrate's Court has jurisdiction to decide whether it has jurisdiction to proceed with a matter brought before it. That is a question of law which the court is entitled to decide. If it decides correctly that it has jurisdiction or has no jurisdiction, well and good. It has exercised the jurisdiction to interpret a question of law correctly. If, on the other hand, it decides that it has jurisdiction when, as in the instant case, it had none, it has arrogated to itself a jurisdiction which it does not have. Its venturing upon the adjudication of the matter before it is wrong in law and subject to review by this court on an application for a Writ of Prohibition.

16. Counsel also referred to R v Nat Bell Liquors, Limited (1922) 2 AC 128, particularly at pp 150-2. At pp 151-2 the Judicial Committee said,

"It has been said that the matter may be regarded
as a question of jurisdiction, and that a justice
who convicts without evidence is acting without
jurisdiction to do so. Accordingly, want of
essential evidence, if ascertained somehow, is on
the same footing as want of qualification in the
magistrate, and goes to the question of his right
to enter on the case at all. Want of evidence on
which to convict is the same as want of
jurisdiction to take evidence at all. This,
clearly, is erroneous. A justice who convicts
without evidence is doing something that he ought
not to do, but he is doing it as a judge, and
if his jurisdiction to entertain the charge is
not open to impeachment, his subsequent error,
however grave, is a wrong exercise of a
jurisdiction which he has, and not a usurpation
of a jurisdiction which he has not. How a
magistrate, who has acted within his jurisdiction
up to the point at which the missing evidence
should have been, but was not, given, can,
thereafter, be said by a kind of relation back to
have had no jurisdiction over the charge at all,
it is hard to see. It cannot be said that his
conviction is void, and may be disregarded as a
nullity, or that the whole proceeding was coram
non judice."(Emphasis added.)

17. The submission that it is not relevant to the existence of jurisdiction that a Magistrate goes wrong in his exercise of that jurisdiction is said to flow from the decision in R v Nat Bell Liquors Limited and from Parisienne Basket Shoes Pty Limited v Whyte [1938] HCA 7; (1937) 59 CLR 369. In the latter case Latham C.J. observed at p 374,

"When jurisdiction is given to decide a question,
there is power to decide it, rightly or wrongly,
and not only power to decide it rightly."

18. But it fails, I think, to take into account the ambiguity latent in the word "jurisdiction" to which I have already adverted. Nothing said in R v The Small Claims Tribunal and Syme Ex Parte Barwiner Nominees Pty Ltd (1975) VR 831 by Gowans J seems to me to be contrary to the view which I have expressed or to be inconsistent with what is, in my opinion, the true meaning of the dicta cited from R v Nat Bell Liquors Limited and Parisienne Basket Shoes Pty Limited v White. Indeed, it seems to me, with great respect, that the decision of Gowans J makes clear the problem latent in the ambiguous word "jurisdiction".

19. The distinction is succinctly put in the head note to R (Martin) v Mahony (1910) 2 IR 695 where it is said,

"...the mere absence of evidence to warrant a
conviction did not oust jurisdiction, but
amounted merely to error as distinguished from
want of jurisdiction."

20. At p 705, Lord O'Brien L.C.J., expanded upon the distinction between the two types of jurisdiction in the following words:-

"It is conceded - the argument proceeds on the
basis - on the hypothesis - that the charge is
adequate, properly laid, and within jurisdiction;
that there is authority to enter upon the case
and to commence the inquiry; but it is contended
that the fact that the evidence, such as it was,
did not authorize a conviction, ousts, destroys,
jurisdiction. I emphasise the word
"jurisdiction". Want of jurisdiction is one
thing; error on the face of the conviction,
where the evidence is incorporated, is another.
I will make manifest what I mean when I come to
the case of R v Smith (TR 588), in respect of
which case there was so much debate and
controversy in the Exchequer Division in In re
v. Sullivan (22 LR Ir 98) and Heaphy's Case (22
LR Ir 500). For the present I turn to The Queen
v Bolton (1 QB 66), a case in which thre was no
right of appeal, and with reference to which
certiorari was not taken away; and I shall read
that passage in Lord Denman's judgment, which is
a locus classicus in the treatment of this
question of certiorari, and to which I more than
once called attention during the argument before
us. It is as follows (I give the language of
Lord Denman; it will be perceived that he dealt
with the question of jurisdiction):-
"The question of jurisdiction," said the learned
Chief Justice, "does not depend upon the truth or
falsehood of the charge, but upon its nature. It
is determinable at the commencement, and not at
the conclusion, of the inquiry; and affidavits
to be receivable must be directed to what appears
at the former stage, and not to the facts
disclosed in the progress of the inquiry." This
is the well-known passage in Lord Denman's
judgment. I emphasize the word "charge," and the
words "its nature." The word "charge" is plainly
used in contradistinction to evidence which might
or might not support a charge. This passage is
set out verbatim, ipsissimis verbis, in
Lord Morris's judgment in The Queen v Sullivan
(22 LR Ir p 504, note). It is not set out or
specifically referred to in either of the
Exchequer judgments. Why should it not apply to
the case before us? I do not refer to cases of a
different character, such as cases of ouster or
cesser of jurisdiction produced by some fact
collateral to the merits, nor to cases of fraud
or wilful abuse of his position by a magistrate,
such as a refusal to hear the person accused or
his witnesses; nor to cases as to whether there
may be uncertainty or ambiguity in the character
of the charge made, nor to cases where, the
evidence being set out or incorporated, there may
be error on the face of the conviction or order.
I take the case before us - the particular case
before us - and ask why Lord Denman's propostion
should not apply to it. To my mind it manifestly
applies to and governs it, and concludes the
controversy against the defendant. The charge ex
concessis is right; it is within the
jurisdiction of the magistrate. Nothing occurred
in the progress of the inquiry to compel the
magistrate to stop, to stay, his hand. Indeed,
it is admitted that the magistrate had
jurisdiction to acquit, but it is said he had no
jurisdiction to convict; that he was not within
jurisdiction in convicting by reason of the
failure of evidence; that is to say, that
jurisdiction at a given moment was a one-sided
thing, a sort of lop-sided power. This, in my
opinion, is plainly wrong. It confounds want of
jurisdiction with error in the exercise of it.

Once it is obvious, and it is so here ex
hypothesi, that the charge as stated is properly,
adequately, stated and within jurisdiction, one
cannot go further except in such cases, such
matters, as I have excluded from discussion as
not being involved in the present controversy.
To grant certiorari merely on the ground of want
of jurisdiction, because there was no evidence to
warrant a conviction, confounds, as I have said,
want of jurisdiction with error in the exercise
of it. The contention that mere want of evidence
to authorize a conviction creates a cesser of
jurisdiction, involves, in my opinion, the
unsustainable proposition that a magistrate has,
in the case I put, jurisdiction only to go right;
and that, though he had jurisdiction to enter
upon an inquiry, mere miscarriage in drawing an
unwarrantable conclusion from the evidence, such
as it was, makes the magistrate act without and
in excess of jurisdiction. I might here refer to
a passage in Paley on Summary Convictions, at
page 76 of the 8th ed., where it is stated that
"A sufficient information by competent persons,
relating to a matter within the magistrate's
cognizance, gives him jurisdiction, irrespective
of the truth of the facts contained in it. His
authority to act does not depend on the veracity
or falsehood of the statements, or upon the
evidence being sufficient or insufficient to
establish the corpus delicti brought under
investigation." For this statement of the law,
which I consider accurate, the learned editor
refers, amongst other cases, to The Queen v
Bolton (1 QB 66).
I might also refer to what Mr Justice A.L. Smith
said in giving judgment in Ex parte Wake (11 QBD
291). The facts and character of that case were
different from those in the case before us, but
he adopts the general proposition to which I
referred. He is reported to have said (p 298):-
"I cannot better express my view upon that part
of the argument than by adopting the language of
Denman, C.J., in Reg. v Bolton (supra). He says:
'But if the charge be of an offence over which,
if the offence charged be true in fact, the
magistrate has jurisdiction, the magistrate's
jurisdiction cannot be made to depend on the
truth or falsehood of the facts, or upon the
evidence being sufficient or insufficient to
establish the corpus delicti brought under
investigation.'""

21. It follows, in my opinion, that while it cannot be doubted that the learned Magistrate had jurisdiction to entertain at least one of the charges, that under s.28(5) of the Ordinance, when the matter was called before him, and therefore to enter upon consideration of the matter that jurisdiction ceased when he began to deal summarily with the matter without offering the Prosecutor the right to have the matter dealt with as an indictable matter. In proceeding on the basis that he had jurisdiction, he was not exercising a jurisdiction erroneously but nevertheless within power. From the moment he purported to embark upon the hearing he was bound to stop. There was no partial jurisdiction remaining in him for his jurisdiction was altogether taken away.

22. Counsel for the Prosecutor also submitted that when Gallop J quashed the convictions he thereby discharged the defendant in the sense that when the Writ was made absolute it constituted an acquittal in respect of the convictions which had been recorded by the learned Magistrate. He said that it followed that this entitled the Prosecutor to the benefit of the rule against double jeopardy. He referred to a passage in the judgment of Dixon J (as he then was) in Broome v Chenoweth [1946] HCA 53; (1946) 73 CLR 583 at p 599 where his Honour said,

"The rule against double jeopardy requires for
its application not only an earlier proceeding in
which the defendant was exposed to the risk of a
valid conviction for the same offence as that
alleged against him in the later proceedings but
that the earlier proceeding should have resulted
in his discharge or acquittal. This last
requirement may be satisfied by something less
than an actual adjudication upon the truth of the
allegations contained in the charge or upon the
existence of some exculpatory fact. It may be
enough if the judgment or order pronounced in
favour of the person who stands in jeopardy must,
according to its legal construction, imply a
failure upon the part of the prosecution to make
out the charge or some ingredient therein or even
a preliminary condition legally indispensable to
a conviction, that is if the condition is of a
kind that cannot be fulfilled after the failure
of the earlier charge and before the laying of
the later charge."

But it is to be noted that his Honour went on to say,

"There can be no question that the information,
upon which, by the order absolute of the Supreme
Court, the defendant was convicted, charged the
same offence upon the same facts, upon the same
date, against the same person as the dismissed
information intended to do. So far, therefore, a
case of double jeopardy is made out. But there
is left the question whether upon the earlier
information there could have been a valid
conviction. If a conviction in that proceeding
could not have been effective, the defendant
never did stand in jeopardy upon the earlier
charge."

23. In R v Bolton, 1 QB 66; 113 ER 1054, referred to in the judgment of Lord O'Brien LCJ in R v Mahony (supra) the court consisted of Lord Denman CJ and Williams and Coleridge JJ. At p 72; 1057, Lord Denman, giving the judgment of the court, said:-

"The first of these is a point of much
importance, because of very general application;
but the principle upon which it turns is very
simple the difficulty is always found in
applying it. The case to be supposed is one like
the present, in which the Legislature has trusted
the original, it may be (as here) the final,
jurisdiction as to the merits to the magistrates
below; in which this Court has no jurisdiction
as to the merits either originally or on appeal."

See also R (M'Grath) v Chairman and Justices of Clare (1905) 2 IR 510, particularly at pp 514 and 516 per Palles CB and Davern v Messel [1984] HCA 34; (1984) 155 CLR 21 at p 57 per Mason J (as he then was) and Brennan J.

24. If a superior court dealing with an application for certiorari has, as in Bolton's case, no jurisdiction as to the merits either originally or on appeal, I do not see how it can be said that, when Gallop J quashed the original convictions, he could be said to have discharged or acquitted the Prosecutor.

25. In my opinion, the authorities from which I have quoted lead to the conclusion that Gallop J did not have any jurisdiction or power nor did he purport to discharge or acquit the Prosecutor of the several convictions which had been recorded when he made absolute the order nisi.

26. I therefore do not accept the submission that the orders absolute quashing the convictions amounted to acquittals of the charges or to a discharge of the Prosecutor on those charges.

27. Counsel also submitted that had Gallop J intended to find want of jurisdiction, the appropriate remedy would have been prohibition, the proceedings being coram non judice, and not certiorari which went only to quash an order that was voidable.

28. Putting the argument in syllogistic form, it might be formulated as follows:-

"A writ of certiorari may be made absolute only
in respect of voidable orders, not in respect of
void orders.
In this case an order for certiorari was made in
respect of orders for conviction.
Therefore the orders for conviction could not
have been void but were voidable only."

29. In Parisienne Basket Shoes Pty Ltd v Whyte (supra) at pp 391-2 Dixon J said,

"In the past a tendency may have appeared in the
superior courts of common law to adopt
constructions of statutes conferring powers on
magistrates and others which would result in the
withdrawal from their exclusive or conclusive
determination matters which we should not think
were intended for their decision. But, even
then, it must not be forgotten that this tendency
was manifested in proceedsings by certiorari and
not in prohibition. When prohibition is based
upon want of jurisdiction it means that the
proceedings are coram non judice, that a judgment
or order, when given or made, would be void. But
certiorari is a proceeding for quashing orders
that are voidable only. When nothing was
intended in favour of orders of courts of
inferior jurisdiction and magistrates and when
convictions before them were bad unless they set
out on their face the information, the process
and the materials upon which they were founded,
it was almost inevitable that whatever grounds
existed for setting aside an order or conviction
would be available upon certiorari. For a
conviction was liable to quashing if upon its
face a failure in the observance of law
appeared. But it is one thing to quash a
conviction or order for error on its face and
another to hold that the court or magistrate
usurped jurisdiction in making it." (Emphasis
added.)

30. In R v Bradley (1894) 70 LT(NS) 379 at p 381, Cave J said,

"Excess of jurisdiction may either exist at the
time when the summons comes on to be heard, and
in that case there is no jurisdiction to hear the
case at all, or it may in some cases crop up in
the course of the hearing, as, for example, where
the question of title to land comes in question,
and in such a case the jurisdiction of the
magistrates is ousted. Whenever either of these
two things happens, if the magistrates proceed to
hear and determine the case, their decision must
be brought up by certiorari for the purpose of
being quashed as being in excess of jurisdiction.
A good deal of misconception
prevails as to what is and what is not excess of
jurisdiction. If the magistrates have no
jurisdiction they cannot proceed with the case,
either to convict or to acquit; they have no
jurisdiction to do either; they must stop
short. That is the meaning of the expression
want of jurisdiction, and that is what is meant
by saying that magistrates have exceeded their
jurisdiction." (Emphasis added.)

31. For reasons already appearing, and to be referred to hereafter, I respectfully differ from his Lordship's apparent view that certiorari would have been properly available.

32. No order for certiorari can or ought to be made if proceedings sought to be attacked are void. Re Daws (1838), 8 Ad and El 936; 112 ER 1095. See also R v Dorking Justices, Ex parte Harrington (1984) 1 AC 743 where, at p 753, Lord Roskill, giving the judgment of the House of Lords, said,

"Since in my view their orders were a nullity I
do not think it would have been right to order
certiorari to issue as well."

33. But the fact that certiorari is not available in respect of a void decision does not always appear to have been adverted to in the cases. In Ex parte Wake (1883) 11 QBD 291, for example, Cave J said at pp 296-7:-

"In order to entitle himself to a writ of
certiorari the applicant has to shew that the
magistrate and the recorder had no jurisdiction
to entertain the complaint. The word
"jurisdiction" is equivocal. When it is said
that there was no jurisdiction, that expression
may mean either that the case was one into which
the magistrate ought not to have inquired at all,
or one in which, having inquired into it, he
ought not to have made the order asked for. In
other words what have been termed "conditions
precedent to the jurisdiction," may be either
conditions precedent to the right of the
magistrate to entertain the matter at all, or
conditions precedent to his making a just order
in it. In my opinion the objections taken before
the magistrate in this case were not in respect
of matters which were conditions precedent to his
right to entertain the complaint at all. The Act
seems to me to give jurisdiction to the
magistrate, and to him only, in the clearest
possible terms...If the objection is well founded
it may be a reason why the order should not be
made, but it does not oust the magistrate's
jurisdiction altogether, and, if it does not, no
ground is shewn for a certiorari."

See also his Lordship's remarks in the passage from R v Bradley just quoted.

34. One of the differences between a void and a voidable decision is that a void decision is susceptible to collateral attack while a voidable decision is not, being susceptible to direct attack only by, for example, appeal or application for certiorari. Void decisions may be ignored although with attendant risks.

35. The problem is well illustrated in Sykes, Lanham and Tracey, General Principles of Administrative Law, 3rd Ed. at p 388. There the learned authors say,

"Although theoretically such a decision is a
nullity through and through and could be
disregarded with legal impunity, few individuals
would have the hardihood, except in a very clear
case, to go ahead on the assumption that the
decision was null and void and order their
commercial or personal lives accordingly. Most
individuals would prefer to have some court
decision confirming total nullity."

36. But Gallop J seems not to have given any consideration to the question whether the convictions impugned were void or voidable only. True it is that he described the order nisi in the matter before him as a order nisi for certiorari and he made that order absolute. In his reasons he said, inter alia,

"The convictions recorded were accordingly made
without jurisdiction and must be quashed. This
is sufficient to warrant an order that the order
nisi be made absolute."

37. But no submissions seem to have been made to him as to the precise form his order should take.

38. The Prosecutor also submitted before Gallop J that the convictions, penalties and orders made by the respondent magistrate in the earlier proceedings were made without the Prosecutor's entering unambiguous pleas to the relevant charges. As to this submission, his Honour said,

"At no stage did the Prosecutor plead guilty in
clear and unambiguous terms. I uphold the ... in
submission on behalf of the Prosecutor. On this
ground also the convictions should, in my
opinion, be quashed."

There was thus clear error on the face of the record.

39. With great respect, it seems to me that once his Honour found that the convictions were recorded without jurisdiction, there was no necessity to enter upon consideration of the validity of the pleas taken by the learned magistrate and the order absolute could not really be founded upon that ground. The magistrate lacked jurisdiction to take a plea at all in respect of any of the charges as Gallop J found. It follows, I think, that the order was made absolute in respect of void proceedings. But that only goes to the form of the order absolute and not to the nature of the proceedings quashed, the very foundation of his Honour's order. I do not think that the Prosecutor can, by a process of inverted logic, which may be intellectually satisfying but is sterile in application, change the nature of the impugned proceedings from being void to voidable.

40. In my opinion, when Gallop J found that the learned magistrate proceeded erroneously in adjudicating upon the charges, he made a finding of want of jurisdiction. In effect, he found that in proceeding with the adjudication the learned magistrate had usurped jurisdiction and in the light of the remarks of Sir Owen Dixon in Parisienne Basket Shoes Pty Ltd v Whyte [1938] HCA 7; (1937) 59 CLR 369 at pp 391-2, emphasised in the passage quoted above, the proceedings before him were coram non judice. The form of the order eventually made by Gallop J could not affect that.

41. I am satisfied, therefore, that no conclusion may be drawn from the form of the order made by Gallop J as to whether the original convictions were void or voidable only.

42. But counsel for the Prosecutor submitted that to permit the charges now before the Magistrates Court to proceed would place the Prosecutor in "double jeopardy". He said, and I assume it to be the case for the purpose of the argument, that the original offences are replicated in the fresh charges.

43. "Double jeopardy, properly understood, is best described in the phrase "no man should be tried twice for the same offence"." Davern v Messel [1984] HCA 34; (1984) 155 CLR 21 at p 30 per Gibbs CJ quoting McNeill J in R v Police Complaints Board; Ex parte Madden (1983) 2 All ER 353, at p 367. His Honour also cited Holmes J in his dissenting judgment in Kepner v United States (1904) 195 US at p 134 (49 Law Ed, at p 126) where he said,

"Everybody agrees that the principle in its origin was
a rule forbidding a trial in a new and independent
case where a man already had been tried once."
The learned Chief Justice went on to say (at pp 30-1),
"The purpose of the rule is of course to ensure
fairness to the accused. It would obviously be
oppressive and unfair if a prosecutor,
disappointed with an acquittal, could secure a
retrial of the accused person on the same
evidence, perhaps before what the prosecutor
"considered to be a more perspicacious jury or
tougher judge": Reg v Humphrys ((1977) AC 1 at
p 47). It might not be quite so obvious that it
would be unfair to put an accused upon his trial
again if fresh evidence, cogent and conclusive of
his guilt, came to light after his earlier
acquittal, but in such a case the facts that an
unscrupulous prosecutor might manufacture
evidence to fill the gaps disclosed at the first
trial, and the burden that would in any case be
placed on an accused who was called upon
repeatedly to defend himself, provide good
reasons for what is undoubtedly the law, that in
such a case also the acquittal is final cf. Reg
v Miles ((1890) 24 QBD, 423 at p 433).
When the prosecution seeks to appeal from an
acquittal, the rule against double jeopardy has
an indirect application. An appeal is a remedy
given by statute; the scope of the appeal must
be governed by the terms of the enactment
creating it Commissioner for Railways (NSW) v
Cavanough ((1935) [1935] HCA 45; 53 CLR 220 at p 225). The
question whether an appeal lies from an acquittal
therefore must be decided as a matter of
statutory interpretation. However it is a
principle of interpretation that no statute will
be construed as abrogating a fundamental
principle of the common law unless an intention
to do so is clearly expressed. The view has been
taken that the common law rule against double
jeopardy would be infringed by allowing an appeal
from an acquittal, since the rule requires that
an acquittal be treated as final. In Benson v
Northern Ireland Road Transport Board ((1942) AC
520, at p 526) the House of Lords accepted as
correct a statement by Palles CB in R v Tyrone
County Justices ((1906) 40 Ir LT 181, at p 182)
that it is an elementary principle that "an
acquittal made by a Court of competent
jurisdiction and made within its jurisdiction,
although erroneous in point of fact, cannot as a
rule be questioned and brought before any other
Court"."

44. All the other Justices of the High Court who sat on the case referred with approval to the dictum of Palles CB quoted by Gibbs CJ.

45. Counsel for the Prosecutor also submitted a proposition which may be conveniently taken from a question asked by Professor Friedland in his work "Double Jeopardy" at p 77,

"Will a conviction or acquittal on the merits by
a court without jurisdiction bar subsequent
proceedings? At the first sight the answer
appears clear if the Court was without
jurisdiction, the accused should not be able to
use that adjudication to bar a second
proceeding. And this is the 'black-letter' law.
But in most cases in which it is said that the
court was 'without jurisdiction' or 'coram non
judice' or that the adjudication was 'void',
'null and void', 'void ab initio', or a
'nullity', the determiniation was not void, but
voidable, and so should not be open to collateral
attack in a subsequent proceeding.
A voidable decision cannot be collaterally
attacked and therefore, until set aside, should
bar further proceedings for the same offence. As
Professor de Smith has stated 'A voidable
decision is binding until rescinded, quashed, or
reversed on appeal.' (de Smith, Judicial Review
of Administrative Action (1959) p 98.)

See also The King (Hastings) v Justices of Galway (1906) 2 IR 499 at pp 503-4 per O'Brien L.C.J. In that case his Lordship said,

"Now, if the order is voidable only, and not
void, the accused was in peril when he stood
before the tribunal. Though in this case he was
acquitted, he might have been convicted. He was
certainly in peril, because he might have been
arrested and imprisoned on a voidable order, and
a very considerable time might elapse before a
voidable order could be avoided by proceedings by
way of certiorari. Until avoided, a voidable
order justifies both arrest and imprisonment.
Although there is no decided case precisely in
point, some references have been made to the
question in recent times. One of the cases to
which I refer is The Queen v The Justices of
Antrim ((1895) 2 IR 603). I may, perhaps, be
permitted to refer to what I said in that case.
At pages 635, 636, I am reported to have said:-
"The offence with which Love, the defendant
in the summons, was charged is one
punishable by fine and imprisonment, and
the order sought to be quashed is one of
acquittal. In the whole range of our law
there is no precedent for the granting, or
even the making, of such an application in a
case where there has been an acquittal by
the magistrates. Not only is the
application unwarranted by precedent, but
principle cannot be referred to in support
of it on the contrary, to grant this
application for a writ of certiorari to
quash the order for acquittal, and for a
writ of mandamus to compel the magistrates
to re-hear the complaint, would be to act in
disregard of one of the most deep-rooted
principles of the law. It would be direct
infringement of the principle that no one is
to be tried twice for one and the same offence."

Perhaps I should not have referred in this bald
way to the maxim. It would have been strictly
applicable if I had expressly added, "if he had
been in peril at the first trial." But, after
all, is not this involved in what I did say? I
referred in immediate connexion to what
Lord Coleridge said in The Queen v Duncan (7 QBD
198). I quoted his words, which were as follow:-
"'The practice of the Courts has been
settled for centuries, and is - that in all
cases of a criminal kind, where a prisoner
or defendant is in danger of imprisonment,
no new trial will be granted if the prisoner
or defendant, having stood in that danger,
has been acquitted.'"

That is the principle, as I understand it, contained in the maxim, "Nemo debet bis vexari pro una et eadem causa." I go on -

"If the case were one where the tribunal was
ex facie wholly unauthorized and the
accusation and the accused plainly coram non
judice, the matter would be entirely
different. In such a case the pretended
adjudication of the usurping tribunal would
appear to be a mere nullity - not merely
voidable, but void."

I take the very distinction there. Further on I say -

"Nor do I stop to consider the case of an
acquittal brought about by the fraud of the
accused and the corruption by him of the
presiding tribunal."

I say the same with reference to this case. Later on, in the case of The Queen (Drohan) v The Chairman and Justices of Waterford ((1901) 2 IR 548), I say:-

"I entirely adhere to the views expressed in
my judgment in Reg v The Justices of County
Antrim."

And I do so now, expressing them, perhaps, a little more fully. I explicitly stated in Dorhan's Case ((1901) 2 IR 548) -

"That if an order of conviction by an
otherwise competent Court were set aside for
bias, a defendant could not again be put on
trial because the conviction was voidable,
not void."

That is the point of the decision, and that such a conviction is voidable, and not void, plainly appears from the judgment of the Court in Dimes' Case (3 HL Cas 759)." His Lordship omitted a sentence from p 636 of the report of his earlier decision,

"I speak of course of this principle (Nemo bis
vexari pro una et eadem causa) in relation to
authorised tribunals."
Palles CB said at p 506,
"Was, then, the defendant here "in peril" when he
was before the Quarter Sessions? Or, in other
words, might that tribunal have subjected him to
lawful imprisonment, by which I mean imprisonment
which he could not have treated as a trespass?
If it might, then the reason the imprisonment
would not have been a trespass would have been
because it was an act done under the authority of
the Court; and if the defendant has been "in
peril" of such imprisonment, then, having been
acquitted in fact, he cannot be allowed to be put
"in peril" again for the same cause; and if he
would be in such second peril, were we to quash
the record of his acquittal by certiorari, we
must refuse the writ.

Thus, the question comes to one which has been
long settled. Had the defendant been convicted
at Quarter Sessions, and endured imprisonment
thereunder, pending an application, ultimately
successful, for a certiorari, would that
imprisonment have been justifiable, or would it
have been an actionable trespass? To state that
question is to answer it. A conviction of the
defendant by the Quarter Sessions under the
circumstances here, would have been not void, ab
initio, but only voidable; and persons acting
under it, until it was actually quashed, would
not have been trespassers."

At page 508 he said,

"It is, I hope, wholly unnecessary to say that
this reasoning has no application to a so-called
decision by a tribunal wholly un-authorised, or
to a decision which, for any other reason, is
void ab initio. As to that, I entirely concur
with Holmes, LJ, when he says, in The Queen v
Justices of Antrim ((1895) 2 IR 603):-
"The plea of autrefois acquit or autrefois
convict implies a previous acquittal or
conviction by a Court of competent jurisdiction."

That was the ground of my decision in The King v The Chairman and Justices of Antrim ((1906) 2 IR 298). The Lord Justice proceeds:-

"A verdict of not guilty of high treason by
a jury at Quarter Sessions, the dismissal on
the merits of a charge of rape by Justices
at Petty Sessions, the conviction by a
court-martial for felony or misdemeanour of
a person not subject to the military code,
would, as far as I am aware, afford no
protection to the accused when impleaded
before a competent and properly constituted
tribunal."
In those cases, however, the acquittal would have
been void ab initio."

46. What his Lordship said in the passage last quoted is consonant with the dictum of Dixon J in Parisienne Basket Shoes Pty Limited v Whyte (supra) at p 392 that "certiorari is a proceeding for quashing orders that are voidable only".

47. There is ample authority for the proposition that certiorari would not go to quash an acquittal by a court of summary jurisdiction. See, for example, R v Simpson (1914) 1 KB 66 at p 71 where Ridley J said,

"There does not appear to be any case in the
books where an acquittal by a Court of summary
jurisdiction has been quashed by a writ of
certiorari, though there is authority that, where
a judgment on an indictment has been reversed by
writ of error or analogous proceedings for a
defect appearing on the face of the record, the
prisoner cannot plead autrefois acquit or
autrefois convict to a subsequent indictment for
the same offence see Reg v Drury (3 Car and K 193)."

His Lordship went on to quote the passage from the judgment of Lord Coleridge C.J. in Reg v Duncan (7 QBD 198),which had been quoted by O'Brien L.C.J.

48. But see R v Tchorzarski (1897) 8 QLJ 79.

49. In R v Drury (1849) 3 Car and K 193; 175 ER 517 Coleridge J said at p 199; 520,

"A man who has been tried, convicted and
attainted on an insufficient indictment, or on a
record, or on a record erroneous in any other
part, is in so much jeopardy literally that
punishment may be lawfully inflicted on him,
unless the attainder be reversed in a Court of
Error; and yet when that is done, he may
certainly be indicted again for the same offence,
and the rule would be held to apply, that he had
never been in jeopardy under the former
indictment. The true meaning therefore of "not
having been in jeopardy" in this rule seems to be
that, by reason of some defect in the record,
either in the indictment, place of trial,
process, or the like, the prisoners were not
lawfully liable to suffer judgment for the
offence charged on that proceeding, and so
understood, it is true in the present instance."

50. In support of this he had earlier referred to 2 Hale's Pleas of the Crown, Ch 32, p 251 and Starkie's Criminal Pleading from which the following quotation was taken:-

"After conviction the defendant remains without
receiving judgment or praying his clergy, or
prays his clergy without receiving judgment, or
he receives judgment of death whereby he becomes
attainted. If the defendant after conviction
remains either without receiving judgment or
praying his clergy, he may be indicted for any
other offence, or even for the same."

51. In R v Marsham Ex Parte Pethick Lawrence (1912) 2 KB 362, the applicant was convicted by a magistrate of assaulting a police constable in the execution of his duty, but by some inadvertence the constable who was assaulted gave his evidence at the hearing of the charge without being sworn. When the attention of the magistrate was called to the irregularity, he reheard the case later in the same day, all the evidence being then given upon oath. The magistrate again convicted the applicant. A rule having been obtained to quash the second conviction upon the ground (inter alia) that it was bad in that the applicant at the time of the conviction had previously been put in peril in respect of the same offence, it was held that the rule must be discharged inasmuch as the applicant had not been legally convicted on the first hearing and had therefore not been in peril at the time of the second hearing, and the second conviction was therefore good.

52. In giving the judgment of the majority of the Divisional Court, Lord Alverstone C.J., with whom Pickford J agreed, said at p 364,

"...I propose to base my judgment that this rule
must be discharged upon the simple ground that
there was before the same magistrate upon the
same day a mistrial which would have compelled
the Court to quash the conviction on the grounds
stated in Reg v Gibson ((1887) 18 QBD 537), and
that being so, it cannot properly be said that
the applicant was in peril so as to bar the
further proceedings on the same day. If the
defendant had been acquitted on the first hearing
very different considerations would arise."

53. The case is the subject of detailed analysis by Professor Friedland, op cit, at pp 47-8. See also R v Seisdon Justices, Ex parte Dougan (1982) 1 WLR 1476.

54. In Bannister v Clarke (1920) 3 KB 598, six informations had been laid against the appellant. Four of these alleged offences were said to have been committed before 21 April 1919 in contravention of s.79 of the Licensing (Consolidation) Act, 1910. The appellant would have been punishable on summary conviction by a fine not exceeding 20 pounds; the fifth alleged that a like offence had been committed on 21 April 1919 while the sixth charged an offence against the Betting Act 1853, punishable on conviction by fine or imprisonment not exceeding six months and said to have been committed on 21 April 1919 also.

55. The six informations were heard together by Justices sitting as a Court of summary jurisdiction. The appellant claimed to be tried by a jury, and was committed for trial on all the informations. At Quarter Sessions he was indicted and tried for the offence under the Betting Act and also in respect of the offence under the Licensing (Consolidation) Act said to have been committed on 21 April 1990. He was acquitted on the count under the Betting Act and the Court of Quarter Sessions quashed the second count upon objection being taken to it on the ground that the charge set out therein was preferred under the Licensing (Consolidation) Act 1910 and that the Court had no jurisdiction to try that charge. The justices subsesquently heard the first five informations including the one which had been quashed at Quarter Sessions and convicted the appellant on each of them. He appealed to Quarter Sessions. The appeal relating to the offence alleged on 21 April was allowed while the others were dismissed. Upon the hearing of the appeals, which were taken together, it was contended on behalf of the appellant that the justices were wrong in law in convicting the appellant on the informations on the ground that the appellant, having been committed for trial thereon, had been placed in jeopardy in respect of the offences therein set out, and that the justices, therefore, had no jurisdiction to hear the informations. On a case stated the Divisional Court, Lord Reading CJ and Shearman and Sankey JJ, held that as a person charged under s.79 of the Licensing (Consolidation) Act had no claim to be tried by a jury, the act of the justices in purporting to commit him for trial on the five informations which alleged offences under s.79 was a mere nullity and did not deprive the justices of jurisdiction to hear those informations summarily at a subsequent date.

56. At p 606 Lord Reading CJ said,

"When the justices purported to commit the
appellant on these informations, they were doing
something which in law they had no power to do.
Their act was null and void; the position was
the same as if the appellant had never been
committed on those informations. The justices
had not adjudicated at all upon them, and in no
sense can the justices be said to have exhausted
their jurisdiction. Authority for this
proposition is to be found in Rex v Marsham (supra)."

57. At p 607 his Lordship said that the Court of Criminal Appeal had acted upon the same principle in cases in which a venire de novo has been awarded. He referred to Rex v Wakefield (1918) 1 KB 216. In that case the appellant was tried for, and convicted of, rape. Shortly afterwards it was discovered that one of the jurors summoned to serve on the jury which tried the appellant was personated by his bailiff, who served on the jury although not in fact qualified to do so. On appeal it was held that there had been a mistrial and a venire de novo was awarded.

58. In Stefani v John (1948) 1 KB 158 the appellant was charged before justices for an offence punishable on summary conviction with imprisonment for a term exceeding three months but was not informed before the charge was gone into of his right to elect whether he would be tried summarily or by a jury. During the hearing the clerk to the justices called attention to the omission, whereupon his counsel, in the presence of the appellant, stated that his client did elect to be tried summarily and that no technical question would be raised on the omission. The justices thereupon adjudicated and convicted. On a case stated it was held by the Divisional Court, Lord Goddard CJ and Humphreys and Croom-Johnson JJ, that, a provision in the statute which alone gave the justices jurisdiction not having been complied with, the justices had no jurisdiction to adjudicate and the conviction must be quashed. At p 161 Lord Goddard, with whom the other Judges agreed said,

"If they had no jurisdiction, it follows that the
defendant was never in peril."

He went on to add,

"It will, therefore, be a matter for the
prosecution to determine whether or not they
will, bearing in mind the length of time
prescribed in the statute, bring another
prosecution. If they can, I hope that they will,
but for the reasons I have given this particular
conviction must be quashed."

59. It is clear that the court there considered that the quashing of the first conviction did not prevent the informant from bringing another prosecution for the same offence.

60. In Crane v The Director of Public Prosecutions (1921) 2 AC 299 the appellant was indicted for receiving goods knowing them to be stolen and another man was charged in a separate indictment with stealing the goods. The prisoners were tried together and convicted. It was held by Lord Dunedin, Lord Atkinson, Lord Sumner and Lord Parmoor, Viscount Finlay dissenting, that the proceedings were a nullity and that the Court of Criminal Appeal, in quashing the conviction, had power under the Criminal Appeal Act, 1907, to order the appellant to be tried according to law.

61. At p 320 Viscount Finlay said,

"But to treat the proceedings which followed the
giving of the persons in charge as a nullity
appears to me to be playing with words. They
were so irregular that they have had to be set
aside, and the result is that in the terms of the
Act there must be judgment of acquittal. The
sentence upon Crane would have been a good return
to a writ of habeas corpus. Proceedings which
are a nullity could afford no justification for
imprisonment. If the trial was a nullity, the
Recorder might forthwith have proceeded to try
Crane again without any order from the Court of
Criminal Appeal. The same result would have
followed if the jury had found Crane "not
guilty" - if the proceedings were a nullity,
there was no trial and no verdict. The theory of
nullity does not in my opinion bear examination."

62. On the other hand, Lord Atkinson, with whom Lord Dunedin concurred, said at pp 321-2,

"The appellant, William Crane, was never, as far
as I can discover, properly arraigned on the
indictment found against him. He never pleaded
to that indictment, the jury who found him guilty
were never sworn to try him separately, and had
no jurisdiction to find against him the verdict
they have found. The whole proceedings were, in
my view, as against him, a mis-trial and a
nullity. When the conviction and judgment
against him, William Crane, had been set aside
and annulled as they, most properly, have been by
the Court of Criminal Appeal, the indictment
found against him stands, in my view, as if he
never had been tried at all. It is, I think,
plain that if under the old practice this
mis-trial had been brought before the Court of
Queen's Bench on a writ of error, the error in
the proceedings being set out in full on the
record as it must have been, the verdict and
judgment would have been set aside and annulled,
and a venire facias juratores de novo would have
been awarded."

63. At p 331 Lord Sumner said,

"How the mistake came about does not now matter,
but it is clear that the appellant purported to
have been tried and convicted on an indictment
which did not exist. It was a mis-trial, and in
truth no trial at all.

64. All the same convicted Crane was and to all appearance convicted on an indictment. I think he was so far "a person convicted on indictment" within s.3 of the Criminal Appeal Act, 1907, as to be competent to appeal against this conviction to the Court of Criminal Appeal. Were it otherwise Crane, who has never had a legal trial at all though imprisoned under sentence on the strength of it, would have to serve his time and apparently be without remedy."

65. At pp 335-6 Lord Parmoor said,

"The result is that Crane was not tried on the
indictment, on which he had been charged, and the
trial is a nullity. I think it is impossible to
hold, that it is within the competency of any
criminal court to try a prisoner on an
indictment, which, so far as he is concerned, is
non-existent. If the facts had been brought to
the notice of an assize judge, or a chairman of
quarter sessions, before the assize or sessions
had terminated, the mistake could have been
rectified, and Crane might have been tried on the
separate indictment. No plea of former
acquittal, or former conviction, for the same
offence could have been effectively raised by
him. A trial, void ab initio, cannot result
either in acquittal or conviction, and Crane
would have stood in the position of an untried
prisoner who had been neither acquitted nor
convicted on the offence charged against him in
the indictment."

66. It should be noted that earlier the Court of Criminal Appeal (Lord Reading CJ and Avory and Roche JJ) had held that Crane's trial had been a nullity and void ab initio. (1920) 3 KB 236.

67. What Viscount Finlay said in Crane's Case is, as it seems to me, an echo of what Hawkins J said in The Queen v Hughes 4 QBD 614. Hughes had procured a warrant to be illegally issued, for the arrest of Stanley upon a charge of assaulting Hughes in the discharge of his duty. Upon the warrant, Stanley was arrested and brought before justices and was, without objection, tried by them and convicted. On being indicted for perjury and convicted Hughes objected that he should be acquitted on the ground that the proceedings against Stanley were informal and without jurisdiction in the magistrates who heard the case. A question was reserved for consideration and during the course of his judgment Hawkins J said at p 626,

"If the contention on the part of the defendant
(Hughes) be correct, then Stanley, even though he
had suffered the whole imprisonment to which he
was sentenced, would be liable to be tried again,
and could not plead autrefois convict; and if he
had been acquitted would have been in no
condition to plead autrefois acquit. Two very
startling consequences."

68. In R v West (1964) 1 QB 15 an information was sworn that the defendant had received, comforted, harboured, assisted and maintained, contrary to s.3 of the Accessories and Abettors Act, 1861, one Richards who before then had stolen some scrap metal. He elected to be tried summarily and was acquitted. Thereafter a further information worded as in the first was sworn and a summons served on him. The justices, having been informed by the prosecution that they had no jurisdiction to try the offence of accessory after the fact to larceny, committed the defendant to quarter sessions. He was tried at quarter sessions. Before arraignment, counsel for the defendant moved to quash the indictment but the deputy chairman ruled that the indictment was good. The defendant appealed on the grounds, inter alia, that the deputy chairman had misdirected himself in law in ruling that the motion to quash the indictment failed in that he:-

(1) assumed jurisdiction to determine the
validity of a trial before the justices;
(2) held that the justices had no jurisdiction
to try an accessory after the fact to
larceny;
(3) held that the memorandum of dismissal of the
information was a nullity; and
(4) held that the justices had jurisdiction to
determine that the first proceedings before
them were a nullity and that they had
jurisdiction on the second proceedings to
commit the defendant to quarter sessions.
It was held
(a) that under the appropriate legislation there
was no jurisdiction in a magistrates' court
to hear and determine an information of
being an accessory after the fact to
larceny;
(b) that the action of the justices in
purporting to hear and to determine an
information of accessory after the fact to
larceny was a nullity;
(c) that the defendant's acquittal was also a
nullity;
(d) that the justices, in assuming a
jurisdiction which they never had, had not
exhausted their jurisdiction and had not
debarred themselves from acting in their
other and quite distinct capacity of
examining magistrates;
(e) that the committal of the defendant to stand
trial at quarter sessions was a valid
committal; and
(f) that the court of trial had jurisdiction to
determine whether there had been a prior
effective acquittal of the defendant by a
court of competent jurisdiction; and,
finally,
(g) that, when the defendant produced a
memorandum of the court's record to the
effect that he had already been acquitted of
the offence charged, the court of trial had
jurisdiction to examine the evidence to
establish whether there had been an
acquittal by a court of competent jurisdiction.

69. In effect, the earlier conviction seems to have been treated as void and dealt with by collateral attack.

70. The Court of Criminal Appeal cited in support of its decision R v Marsham (1912) 2 KB 362 and Bannister v Clarke (1920) 3 KB 598 referred to above.

71. Taken by itself that case would seem to be conclusive against the Prosecutor as demonstrating that the Prosecutor had never been in peril before of being convicted of the offences with which he now stands charged.

72. R v West was considered by the House of Lords in R v Dorking Justices, Ex parte Harrington (1984) 1 AC 743. In that case the defendant pleaded not guilty to charges of assault and of using threatening behaviour. The prosecution applied for an adjournment. The justices announced that the case would be heard on a date when the defendant would be away on holiday. Counsel for the defendant objected and the justices, without having inquired whether the prosecution were able to proceed, dismissed the informations. Counsel for the prosecution, who had been in a position to proceed immediately, albeit without a principal witness, thereupon requested the justices to reconsider their decision but, on the advice of their clerk, the justices decided that the dismissals had to stand. The prosecution applied for judicial review by way of certiorari to quash the decision of the justices and mandamus to require them to hear the evidence against the defendant on the ground that the failure to afford the prosecution the opportunity to proceed forthwith by calling such witnesses as were available was a breach of the rules of natural justice. The Divisional Court refused the application, holding that although the justices had acted in breach of natural justice, the dismissal of the charges against the defendant amounted to an acquittal and since the defendant had been in jeopardy the Divisional Court had no power upon an application for judicial review to quash the acquittals and order a new trial. The House of Lords upheld the appeal. It held that,

(a) in determining whether an acquittal was
susceptible to judicial review, the test was
not whether there had been a breach of the
rules of natural justice but whether the
decision to acquit was a nullity;
(b) that the justices' decision was a nullity;
(c) that, accordingly, the issue of double
jeopardy did not arise; and
(d) the Divisional Court had had power to quash
the acquittals and remit the matter to
justices for rehearing.

73. Lord Roskill, who delivered the judgment of the House, referred to R v Marsham, Ex parte Pethick Lawrence and to West's Case (supra). At p 752 his Lordship pointed out that

"No doubt in some cases the distinction between
actions by justices which are without jurisdiction
and thus a nullity and actions which are an erroneous
erroneous exercise of jurisdiction may be fine."

He referred to R v Simpson (1914) 1 KB 66. His Lordship further held that in the instant case the dismissal of the informations was without jurisdiction and was a nullity and, that being the case, he did not think it would have been right to order certiorari to issue as well.

74. During the course of his judgment Lord Roskill said at pp 752-3:-

"...it is necessary to point out...that an
accused person is not, in the context of a plea
of autrefois convict or autrefois acquit in
jeopardy merely because that person is standing
trial on a particular charge and in a popular
sense is in jeopardy as being in peril of
conviction. Jeopardy in the relevant sense only
arises after a lawful acquittal or a lawful
conviction. I cannot do better than refer to the
opinion of the Judicial Committee of the Privy
Council delivered by Lord Devlin in Director of
Public Prosecutions v Nasralla (1967) 2 AC 238
where the noble and learned Lord said, at
pp 249-250:
"But if the rule against double jeopardy and
the principles of autrefois are to produce
the same result, the word 'peril' must be
given a more restricted meaning. It is
true that the object of the plea of
autrefois is to ensure that a man is not
placed in double jeopardy. It is true also
that as a general rule, i.e., whenever the
trial of an offence is concluded as it
usually is, it is right to say that the
accused must not be put in jeopardy again.
But what is essential to the plea of
autrefois is proof of a verdict of acquittal
of the offence alleged - not proof that the
accused was in peril of conviction for that
offence..."
Lord Sumner in Crane v Director of Public
Prosecutions (1921) 2 AC 299, 332 said, in a
venire de novo case:
"Acquittal implies that a true legal trial
has been had. Here there has legally been
none at all, but only the semblance of one,
a mistrial, which does not count."
Finally I refer to Short and Mellor, The Practice
of the Crown Office 2nd ed. (1908). In the
chapter dealing with mandamus the authors, after
setting out the circumstances in which mandamus
will not issue to justices, say, at p 206:
"The applicant must clearly show that the
justices have refused and declined
jurisdiction. What amounts to a refusal of
jurisdiction is often a difficult matter to
decide...Whether a magistrate has come to a
right conclusion or not, either on the law
or the facts, cannot be inquired into on
mandamus, but only whether he has
adjudicated; but it must be an adjudication
within his jurisdiction and according to law."

75. See also France v Kraft (1985) 39 SASR 272 and Walker v Baehnk (No. 2) (1987) 44 SASR 380.

76. I refer again to the comment made by Lord Goddard CJ at the conclusion of his judgment in Stefani v John (1948) 1 KB 158 and quoted above.

77. In R v Rochow (1983) Qd R 184 the Court of Criminal Appeal was dealing with a case where consideration was given to s.443 of the Criminal Code which conferred on justices a power to deal summarily with charges of certain indictable offences if, inter alia, the accused person admitted that he was guilty of those offences. Part of s.444 provided that before the accused person was asked to show cause why he should not be convicted the justices were required to explain to him that he was entitled to be tried by a jury, and was not obliged to make any defence before them, and to ask whether he objected to the charge being dealt with summarily. The court held that the provision of s.444 must be strictly complied with. At p 186 McPherson J, giving the judgment of the court, said,

"In a number of judgments in the English cases
there are statements which imply and at times
express the view that failure to observe the
procedural requirements precedent to dealing with
the offence summarily is a defect which goes to
jurisdiction and so deprives the inferior court
of its power to hear and determine the charge
see Stefani v John (1948) 1 KB 158, 161."

McPherson J concluded his judgment by saying,

"The result is in my opinion that the conviction
should be set aside and the matter remitted to
the magistrate with a direction that the hearing
commence de novo."

78. It will be seen that, as in Stefani v John, the Queensland Court of Criminal Appeal seems to have had no doubt that once the convictions were set aside, fresh informations alleging the same offences might be laid against the appellants without their being placed in peril again.

79. The authorities are not easy to reconcile. There is much to be said for the view expressed by Hawkins J in The Queen v Hughes, by Viscount Finlay in Crane v The Director of Public Prosecutions, by O'Brien LCJ and Palles CB in The King (Hastings) v Justices of Galway and by Professor Friedland. On the other hand it seems to me that a long line of authority compels the conclusion that the decisions in question here were void. I think that the way to reconciliation may lie through R v Drury. If a man be tried, convicted and attainted or sentenced and suffers the punishment awarded, he has been truly in jeopardy and ought not to be tried again in respect of the same offence for that would be to put him in double jeopardy. This would be as a matter of fact and not of legal theory. But it does no violence to the rule against double jeopardy to say that a man said to have been convicted of an offence by a court having no jurisdiction in respect of it who has suffered no punishment following the alleged conviction has never been in peril of conviction of the offence.

80. I think what the learned magistrate did was without power and was therefore a nullity. It seems to me that, with great respect, the appropriate course may well have been to issue a writ of prohibition forbidding any further action upon the convictions, particularly in respect of the fines imposed, on the ground that they were void. That would, in my opinion, have avoided all problems of nomenclature and would have enabled what the learned magistrate had done to be characterised as truly void.

81. It follows, in my opinion, that the Prosecutor was never in peril of a legal conviction and that therefore the order nisi made herein should be discharged. So too should the order staying proceedings in respect of the informations numbered 88/17399 - 88/17413 and the charges numbered 89/4300 - 89/4309.