The Queen v J B and C H; Ex Parte [2001] ACTSC 10 (9 February 2001)

Last Updated: 27 September 2001

The Queen v J B and C H; Ex Parte

Peter Steven Kuhnke [2001] ACTSC 10 (9 February 2001)

CATCHWORDS

MAGISTRATES - Childrens Court - Children's Services Act 1986, s 33(7) - requirement that child under restraint be released forthwith unless authorised officer decides as soon as practicable to consent to prosecution - whether child was under restraint - no evidence that he was - whether decision to consent made as soon as practicable - no evidence on point - whether consent to prosecution required by s 33(1) valid if child not released in accordance with s 33(7) - it is - whether consent valid if given after release - it is.

CRIMINAL LAW - procedure - whether prosecution instituted at time when decision required whether to consent to prosecution - it was not.

SUPREME COURT - appellate jurisdiction - whether application for order to review decision to dismiss informations under s 219B of Magistrates Court Act 1930 is within appellate jurisdiction conferred by s 20 of Supreme Court Act 1933 - not decided.

Crimes Act 1900, ss 97, 102(1)(a), 128(4)

Magistrates Court Act 1930, ss 219B, 219C, 219D, 219F, 22, 25, 26, 37, 42

Supreme Court Act 1933, s 20

Children and Young People Act 1999, s 420

Children's Services Act 1986, ss 20A, 20B, 29, 33

War Precautions Act 1914

Federal Court of Australia Act 1976

Bail Act 1992

Kelly v Apps [2000] FCA 687; (2000) 98 FCR 101

Thompson v Mastertouch TV Services Pty Limited (No 3) [1978] FCA 24; (1978) 19 ALR 547

McDonnell v Smith [1918] HCA 26; (1918) 24 CLR 409

R v Nichol; Ex parte Davies (1985)

On Appeal from the ACT Childrens Court

No SCA 15 of 2000

Judge: Miles CJ

Supreme Court of the ACT

Date: 9 February 2001

IN THE SUPREME COURT OF THE )

) No SCA of 15 of 2000

AUSTRALIAN CAPITAL TERRITORY )

On Appeal from the ACT Childrens Court

BETWEEN: THE QUEEN

AND: J B

C H

Respondents

EX PARTE: PETER STEVEN KUHNKE

Appellant

ORDER

Judge: Miles CJ

Date: 9 February 2001

Place: Canberra

THE COURT ORDERS THAT:

1 The order nisi of 5 May 2000 be made absolute, the orders of the Childrens Court dismissing the informations in charge cases CH1999/2944-48 and CH1999/2949-53 be set aside and further proceedings on those informations be permanently stayed.

2 The appellant pay the respondents' costs of and incidental to the appeal.

3 The names of the respondents not to be published.

1 The nature of the present matter needs clarification. The heading on the documents filed suggests that it is within both the appellate jurisdiction and the original jurisdiction of the Court, which would appear, on an initial impression at least, to be impossible. Perhaps in the light of Kelly v Apps [2000] FCA 687; (2000) 98 FCR 101, it is possible. Perhaps it does not matter.

2 On 5 May 2000, on the oral application of the Director of Public Prosecutions, Crispin J made an order nisi that James Beaton and Christopher Hering (the respondents) show cause why the decision of the Magistrate given on 29 March 2000 in certain matters in the Childrens Court whereby the informations that each of the respondents did enter buildings as a trespasser with intent to steal, did steal, did attempt to enter a building as a trespasser with intent to steal, and did damage property in contravention of ss 97, 102(1)(a) and 128(4) of the Crimes Act 1900 (the Crimes Act) were dismissed, should not be reviewed on grounds set out in the order nisi. Those grounds were:

"(a) there was a prima facie case of error or mistake on the part of the Childrens Court in that the Learned Magistrate wrongly held that:

`The consent to prosecute or to institute proceedings is, in my view, a decision to lay a charge.'

(b) there was a prima facie case of error or mistake on the part of the Childrens Court in that the Learned Magistrate wrongly held:

`The critical aspect is that the signing of the VATAC document and the consent process should be done simultaneously, or at least, the consent should occur within a reasonable proximity in time to the decision to press forward with criminal charges ... Both the consent and the agreement should in reality occur on the same day.'

(c) there was a prima facie case of error or mistake on the part of the Childrens Court in that the Learned Magistrate wrongly held that the proceedings against the Repondents were instituted when the Respondents signed the Voluntary Agreement to Attend Court.

(d) there was a prima facie case of error or mistake on the part of the Childrens Court in that the Learned Magistrate wrongly held that the proceedings had not:

`been property commenced in accordance with the due process required by the Children's Services Act'.

(e) there was a prima facie case of error or mistake on the part of the Childrens Court in that the Learned Magistrate in holding that the proceedings had not `been properly commenced in accordance with the due process required by the Childrens Services Act' had misconstrued the provisions of the Childrens Services Act 1986 and particularly Section 33, and

(f) the decision of the Childrens Court to dismiss the charges against the Repondents should not in law have been made."

3 An order of a Magistrate dismissing an information is subject to "an appeal by way of order to review" under s 219B of the Magistrates Court Act 1930 (the Magistrates Court Act). A written "summary of the prosecutions submissions on application for order nisi" which is in the court file, indicates that the application before Crispin J was made, or purported to be made, under s 219C of the Magistrates Court Act. The hearing before Crispin J appears to have been conducted as an application for order nisi under that section and the hearing before me was conducted as if it were a return of the order nisi. The powers of the Court on the return of an order nisi made under s 219C are set out in s 219F.

4 Neither counsel sought to rely on the general appellate jurisdiction of the Court conferred by s 20 of the Supreme Court Act 1933 (the Supreme Court Act) and recognised in Kelly v Apps. If that jurisdiction were sought to be invoked, the Court would need to make a decision whether the appellate jurisdiction conferred by s 20 extends to an appeal against a decision of a Magistrate which is tantamount to an acquittal. The provisions of the Federal Court of Australia Act 1976, which give the Federal Court jurisdiction to hear and determine appeals from judgments of the Supreme Court of a Territory, have been held not to extend to appeals against acquittals: Thompson v Mastertouch TV Service Pty Limited (No 3) [1978] FCA 24; (1978) 19 ALR 547. It is not necessary for the purpose of the present proceedings to decide whether s 20 is so limited in its operation.

5 On that basis I propose to treat the present proceedings as simply the return of an order nisi for review made pursuant to s 219C of the Magistrates Court Act. The moving party for review is the informant in the Childrens Court and, in the light of the terminology of s 219D and s 219F, will be referred to as the appellant. The respondents are the young persons charged before the Childrens Court. The Crown has played no part in the review proceedings despite the heading in the documents filed.

6 The case raises what would have been an important question of law under the Children's Services Act 1986 (the Children's Services Act) if that Act had not been repealed by s 420 of the Children and Young People Act 1999. The repeal was effective on 10 May 2000. The general importance of the question is thereby diminished, if not destroyed.

Facts

7 The respondents were both children within the terms of the Childrens Services Act. Each of them was interviewed at the Belconnen Police Station on 28 September 1999 by Detective Constable Kuhnke. Each was accompanied by a parent. At the end of the interview, each boy and each parent signed a document known as a VATAC or Voluntary Agreement to Attend Court. In accordance with the terms of the VATAC, each boy agreed to attend the Childrens Court at 9.30 am on Tuesday, 5 October 1999 to be charged with a number of specified offences alleged to have occurred on 28 September 1999. The VATAC contained particulars of those offences. The boys were handed copies of the VATAC signed by Constable Kuhnke. They then left the police station with their parents.

8 On 1 October 1999 Detective Sergeant Peter Budworth of the Australian Federal Police signed a document in respect of each boy headed "Consent to the Institution of a Prosecution Against a Child", in which it was stated, inter alia, that:

* he was authorised to act under Division 2 of Part IV of the Children's Services Act;

* he was not otherwise involved in the investigation of the offences allegedly committed by the boy;

* he had had regard to the matters which seemed to him to be relevant and in particular to each of the matters enumerated in para (a) to para (l) of s 33(3) of the Children's Services Act, which were set out verbatim in the document;

* he was satisfied that a prosecution against the boy was justified for each of the offences specified in the VATAC.

9 It was further stated in the document that, pursuant to s 33(3) of the Children's Services Act, Sergeant Budworth provided the following written reasons for giving his consent to the prosecution:

"a) The offence is of a serious nature;.

b) The evidence available as to the commission of the offence;

c) The circumstances in which the offence/s are alleged to have been committed;

d) There is little or no apparent parental control over the child;

e) The prevalence of similar offences;

f) A warning or caution to the child would not be sufficient.

Child denied all knowledge of the offence given the overwhelming evidence against him and the fact that he was apprehended on premises. Showed no sign of remorse for his actions."

10 The document also set out Sergeant Budworth's findings on material questions of fact, namely:

"a) The child has made certain admissions in relation to the offences;

b) The offences are indictable."

11 The document further referred to the evidence or other material on which those findings were based, namely that the child had made certain admissions to being at the premises of the attempted burglary and that there were available independent witnesses and other evidence implicating the child.

12 The document concluded with a statement that Sergeant Budworth consented to the institution of the prosecution against each of the boys for the offences specified in the VATAC.

Proceedings in the Childrens Court

13 Each of the boys appeared before the Childrens Court on 15 October 1999 accompanied by a parent and represented by counsel. Each was charged with the offences specified in the VATAC (and some other offences which are not relevant to the present proceedings). The determination of the proceedings on those charges was adjourned to subsequent dates and eventually to 11 February 2000. No plea appears to have been taken. No evidence was taken except for the admission of the VATACs as exhibits. Counsel raised as a "preliminary point" the provisions of s 33 of the Children's Services Act, namely:

"33. Limitations in respect of criminal proceedings against children

(1) Subject to subsections (4) and (8), a police officer shall not institute a prosecution against a child for an offence unless an authorised officer, being an officer not otherwise involved in the investigation of the alleged offence, has consented in writing to the institution of the prosecution and the consent has not been revoked.

(2) Subsection (1) does not affect any requirement under any other law to obtain consent to a prosecution.

(3) For the purpose of determining whether he or she should consent to the prosecution of a child, an authorised officer shall have regard to such matters as seem to the officer to be relevant and, in particular, to each of the following:

(a) the seriousness of the offence;

(b) the evidence available as to the commission of the offence;

(c) the circumstances in which the offence is alleged to have been committed;

(d) whether the child has previously been found guilty or convicted of an offence, whether against a law in force in the Territory or elsewhere, and the seriousness or otherwise of that offence;

(e) whether a warning has at any time been given to the child in the Territory by a police officer;

(f) the age of the child;

(g) the apparent maturity of the child;

(h) the apparent mental capacity of the child;

(ha) any apparent mental dysfunction of the child and whether, as a consequence, it would be appropriate to refer the child to the Mental Health tribunal;

(i) whether the parents of the child appear able and prepared to exercise effective discipline and control over the child;

(j) whether it would be sufficient to warn the child, at a police station, at home or otherwise, against the commission of the same or similar offences;

(k) the prevalence of the same or similar offences;

(l) whether the prosecution would be likely to be harmful to the child, or to be inappropriate, having regard to the personality of the child, the circumstances of living of the child or any other circumstances that the authorised officer considers should be taken into account.

(4) Where the offence is one the prosecution for which requires the consent of a person under any other law, the authorised officer shall -

(a) make a recommendation with respect to the prosecution, having regard to the matters specified in subsection (3); and

(b) forward his or her recommendation, together with the papers and all other relevant material, to the person whose consent is required under that other law.

(5) The authorised officer shall not consent to the prosecution unless the authorised officer is satisfied, after having considered the matters referred to in subsection (3), that a prosecution is justified.

(6) If an authorised officer consents to the prosecution of a child whom the authorised officer knows or believes has not previously been convicted of an offence, whether against a law in force in the Territory or elsewhere, the authorised officer shall record in writing his or her reasons for giving consent.

(7) Where a child is under restraint, an authorised officer shall, as soon as practicable, decide whether he or she will consent to a prosecution of the child and, if the authorised officer does not so consent, the child shall forthwith be released.

(8) A police officer may institute a prosecution against a child without the consent of an authorised officer where -

(a) the child is licensed to drive a motor vehicle; and

(b) the police officer believes on reasonable grounds that the child has committed an offence arising out of the use of a motor vehicle."

14 The Magistrate constituting the Childrens Court at the time gave a decision on 29 March 2000.

15 After setting out the history of the matter and the provisions of s 33, the Magistrate remarked that, in his view, the consent to prosecute or institute proceedings is "a decision to lay a charge." He then continued:

"The VATAC procedure was introduced in the early 1990's with the mutual agreement of all stakeholders in the criminal justice system including the Director of Public Prosecutions, the Australian Federal Police, the Magistrates Court and the Criminal defence lawyers. The process was developed to overcome an inordinate delay in the summons process system within the Australian Federal Police, particularly its legal section at that time.

Unlike New South Wales the system has no legislative base for enforcement within the Australian Capital Territory. It commenced in New South Wales by an amendment to the Justices Act 1902 on 1 March 1987 (see Justices (Penalties and Procedure) Amendment Act 1985 Schedule 2). The procedure is provided for in Part 4 Division 3 of the Justices Act.

In the Australian Capital Territory if a person fails to attend Court in pursuance of the agreement no action occurs but rather a Summons is issued in the conventional way which, if there is no appearance after proper service is proved then a warrant of apprehension may issue. The critical question to be asked then is when are the proceedings actually commenced. It is, without proceeding to great detail, usually by arrest or an information on oath by summons. The Australian Capital Territory procedure is set out in Volume 2 paragraph 1013 page 706 onwards of Mr M Ward's Treatise on Criminal Law and Practice (A.C.T.)"

16 The Magistrate went on to discuss the need to respect the rights of children and continued.

"There seems to me to be no reason why the VATAC procedure cannot apply to children before the courts. The critical aspect is that the signing of the VATAC document and the consent process should be done simultaneously, or at least, the consent should occur within a reasonable proximity in time to the decision to press forward with criminal charges having had the parents and child agree to attend Court to face those charges on a [sic] agreed date. Both the consent and the agreement should in reality occur on the same day."

The Magistrate concluded that he was not satisfied that the proceedings had been properly commenced in accordance with "the due process" required by the Children's Services Act. He proceeded to dismiss the charges.

Grounds for Review

17 The grounds on which review was sought of the Magistrate's decision to dismiss the charges may be summarised by saying that it is contended that the Magistrate erred in law in holding that:

* the consent to prosecute or initiate proceedings is a decision to lay a charge;

* that the consents and the VATACs should occur on the same day;

* that the proceedings were instituted when the respondents signed the respective VATACs;

* that the proceedings had not been properly commenced in accordance with the Children's Services Act.

18 However, as I shall indicate, the real issues in the appeal are not correctly identified in the above. The parties and the Magistrate appeared to have assumed, I think correctly, that a prosecution against a child instituted by a police officer without the written consent of an authorised officer, as provided for by s 33(1) is a nullity: see McDonnell v Smith [1918] HCA 26; (1918) 24 CLR 409.

Issues on the Appeal

19 The central issue raised relates to the prohibition imposed by s 33(1) against the initiation of a prosecution against a child without the consent in writing of an authorised officer not otherwise involved in the investigation to the institution of the proceedings. As both counsel accepted for the purposes of the appeal, that issue is not resolved, or even addressed, by the proposition enunciated by the Magistrate that a consent to prosecute or institute proceedings is a decision to lay a charge. I happen to think that the proposition is not wholly correct: a decision to consent to a prosecution is not a decision to lay a charge, although, allowing for a certain looseness of language, a decision to institute a prosecution may be a decision to lay a charge. However, the point is irrelevant to the question whether Sergeant Budworth had consented in writing to the institution of the proceedings against the respondents prior to the proceedings being instituted.

20 The Childrens Court is the Magistrates Court under another name: Children's Services Act s 20A and s 20B. Under s 22 the provisions of the Magistrates Court Act and the rules and regulations under that Act apply to and in relation to the Childrens Court in the exercise of its jurisdiction under Pt 4 of the Children's Services Act, that is to say the jurisdiction in relation to "child offenders".

21 Sections 25 and 26 of the Magistrates Court Act provide as follows:

"25 Informations

Proceedings may be commenced in the court by information laid by the informant or by a legal practitioner or other person representing the informant.

26 Laying of informations

An information may be laid before a magistrate in any case where a person has committed or is suspected of having committed, in the Territory, an indictable offence or an offence which may be dealt with summarily as provided in section 19."

22 Provisions similar to those in s 25 and s 26 are commonly found in statutes regulating the procedure in courts of summary jurisdiction, whether styled magistrates courts or otherwise.

23 The Magistrate in the present case stated, "without proceeding to great detail", that proceedings are commenced usually by arrest or an information on oath by summons. The statement is too general to be correct. There is no requirement that the magistrate before whom an information is laid be the magistrate who subsequently hears and determines the proceedings. The laying of an information may be followed by the issue of a summons (s 37) or, if on oath and in writing, by the issue of a warrant for the arrest of the person against whom the information is laid (s 30, s 42). If the person has been arrested without warrant or attends court voluntarily before the information is laid, then the information may be laid orally before the presiding magistrate and in the presence of the person. This latter proceeding (and a similar proceeding before an authorised officer under the Bail Act 1992) is often referred to as "charging", but the important point is that the laying of an information before a magistrate is essential for the jurisdiction of the Magistrates Court to be exercised under Pt 4 of the Magistrates Court Act. A description of the offence and the charging process may be recorded on a "bench sheet" or "charge sheet". It appears that the record so constituted is regarded as an information in writing.

24 McDonnell v Smith was concerned with somewhat different legislation (the War Precautions Act 1914) in which there were provisions that an offence against that Act should not be prosecuted summarily without the written consent of the Attorney-General or the Minister for Defence or a person authorised by one or the other and not on indictment except in the name of the Attorney-General. The High Court said in a short judgment at 412:

"What the Legislature has said means that a prosecution shall not be begun without the prescribed consent, and the prosecution is begun when the information is laid."

25 In some contexts it is true that an arrest is regarded as marking the distinction in point of time between the investigatory stage of the criminal justice process and the curial, judicial or adjudicative stage.

26 This is because once a person is arrested, there is a duty at common law and commonly under statute that the person doing the arresting is required to take the person arrested as soon as practicable before a court to be dealt with according to law.

27 To be dealt with according to law means to be charged with the offence for which the person has been arrested, or, more precisely, so that the laying of an information and subsequent hearing and determination of the information may proceed. Once the information is laid, the court then has jurisdiction to determine whether the person is guilty or not guilty of the offence alleged and whether the person should remain in custody or go free whether on bail or otherwise, pending the determination.

28 In the ordinary sense of the words, arrest and prosecution are not simultaneous. In the ordinary sense and in any event the respondents were not under arrest or in custody at any time relevant for the purposes of the present case. However, it was submitted on their behalf that they were in custody whilst at the police station on 28 September 1999 because they were not free to come and go as they pleased or would not have understood that they were free to do so.

29 It is true, again in certain contexts, that a person is regarded as being in the custody of another if the circumstances are such that he or she is given to understand that he or she is being held and is not free to come and go. That is the approach taken when there is a question about the circumstances of the making of a confession.

30 However, in my view, it is an impermissible use of analogy and false legal reasoning to say that because a person is at a police station in relation to an offence in circumstances which give the person the impression that he or she is not free to come and go, it follows that a prosecution has been instituted. Nor is there any justification for the proposition that a prosecution formally commenced by the laying of an information against a person is retrospectively instituted at some earlier point of time at which the person, being at a police station, formed or might reasonably have formed the view that he or she was not free to come and go.

31 The respondents relied not only on the general law but also on certain provisions of the Children's Services Act, in particular s 29(3) and s 29(5) which provide as follows:

"29 Interpretation

......

(4) If a child is in the company of a police officer for a purpose connected with the investigation of an offence or a possible offence and the police officer would not allow the child to leave if the child wished to do so, whether or not the police officer has reasonable grounds for believing that the child has committed the offence and whether or not the child is in lawful custody in respect of the offence, the child is, for the purposes of this Division, under restraint.

......

(5) For the purposes of this Division, a child is in the company of a police officer for a purpose connected with the investigation of an offence if the child is waiting at a place at the request of a police officer for such a purpose.

32 Thus, it was submitted on behalf of the respondents that whilst at the police station they were in the company of a police officer within s 29(5) and therefore under restraint within s 29(3), and, that, in accordance with s 33(7), an authorised officer was obliged, as soon as practicable, to decide whether he or she would consent to the prosecution and that in the absence of such a consent, a subsequent prosecution is prohibited by s 33(1).

33 The difficulty with this submission and with s 33(7) is that there is an absence of focus in the Act upon the time at which the absence of consent to the prosecution operates. The duty under s 33(7) is to decide, as soon as practicable, whether to give or to withhold consent. If the authorised officer does not make an affirmative decision to consent as soon as practicable, then the child must be released. Further, it seems that if the authorised officer makes a decision within the time required, that is, as soon as practicable, but the decision is not to consent, the child must be released in that event also.

34 No evidence was taken in the present case. It is not known at what time the respondents arrived at the police station, or otherwise went into "the company of a police officer" and were thus "under restraint". Nor is it known at what time the respondents left the police station and ceased to be in the company of a police officer, if they were indeed in that company and in that sense "under restraint". Nor is it known when Sergeant Budworth made his decision that he would consent to the prosecution. All that is known is that the respondents, with their parent, left the police station on that day and that Sergeant Budworth gave his written consent to the prosecution some three days later.

35 The provision in s 33(7) that if "the authorised officer does not so consent" (emphasis added) assumes both that a particular authorised officer is identifiable whilst the child is under restraint and that if that officer does not actually consent as soon as practicable then the child must be released immediately upon the expiry of the time in which the making of a decision would have been practicable. Section 33(7) appears to distinguish between a decision by an officer that he or she will consent from the subsequent and actual consent required by s 33(1). Thus in the case of a decision not to consent, whenever made, the child is to be released immediately upon the making of the decision. In the absence of a decision one way or the other by the expiry of the time period in which the decision would have been practicable, the child is to be released immediately upon expiry of that time. Neither of these provisions, so it seems to me, affect the validity of the consent of an authorised officer given after the child has ceased to be under restraint. That consent will be valid for the purpose of s 33 so long as it is given before the institution of the prosecution by the laying of an information.

36 I do not think that the decision of Kelly J in R v Nichol; Ex parte Davies (1985) 14 A Crim R 460 is of assistance to the respondent. That case was about a provision in previous legislation concerning "when a child or young person is charged before [the Court of Petty Sessions] with an offence". His Honour held that the provision meant that the relevant date was the date of the laying of the information. The decision is entirely consistent with the proposition that a prosecution is instituted at the time of the laying of the information.

37 In the present case the records of the Magistrates Court include five bench sheets for each respondent. Each bench sheet is dated 5 October 1999 and otherwise is identified by a charge case number. The informant is identified by name as Peter Steven Kuhnke, a police officer and the present appellant. The defendant is identified by name as one or other of the respondents. Each bench sheet contains on it a notation that the respondent named is or has been "charged before court". It also identifies the section of the Crimes Act in contravention of which the offence is alleged to have occurred and gives particulars of the alleged offence in the terms of that section. One example will suffice, namely charge case number 2945, which alleges an offence by one of the respondents in contravention of s 102(1)(A) of the Crimes Act namely:

"that he, in the Australian Capital Territory, on 28 September 1999, did enter a building, to wit, 9 Hammett Place, Spence, as a trespasser with intent to steal therein."

38 In my view, it is clearly established, and was clearly established before the Magistrate, that the informations were laid on 28 February 1999 and that the prosecution was thereby instituted. It was not disputed that Sergeant Budworth was an authorised person within the terms of the Children's Services Act and that he had given his consent as required by s 33. In my view, the Magistrate had jurisdiction to determine the informations and should have exercised that jurisdiction. The Magistrate should have proceeded to hear and determine the informations and should not have dismissed them for want of jurisdiction.

39 It was submitted on behalf of the appellant that, upon review by this Court, the order of the Magistrate dismissing the charges should be set aside and the proceedings returned to the Childrens Court to be heard and determined in accordance with law pursuant to s 219F(1A)(c). However, in the exercise of discretion I decline to take that final step. It is now more than 12 months since the occurrence of the events with which the prosecutions were concerned. Summary proceedings, particularly proceedings in Children's Courts should be heard promptly and this is no longer possible. Furthermore, the respondents have enjoyed the status of persons acquitted of criminal charges. There is a principle of double jeopardy which may be in question here. Appeals or other proceedings whereby a prosecuting authority is able to overturn an acquittal or a result analogous to an acquittal are rare in our system. For the purposes of juvenile criminal justice, the process of being taken to or going to a police station and being questioned there, as well as undertaking to appear and appearing at a court and being charged with criminal offences, all act, to some extent, as a deterrent, or at least a reminder to the child or young person that infringements of the criminal law are to be treated seriously and may result in punishment. Hence, whilst I think that the error of law on the part of the Magistrate was such that the orders dismissing the charges be set aside, I do not think it appropriate that the hearing of those charges should proceed any further. However, something ought to be done to put a formal end to the proceedings and for that reason and in the exercise of the inherent jurisdiction of the Court or in the exercise of the appellate jurisdiction under s 20 of the Supreme Court Act (see Kelly v Apps) I order a permanent stay of proceedings.

40 In accordance with s 219F(5) and s 219F(6) of the Magistrates Court Act the appellant is to pay the costs of and incidental to the appeal.

I certify that the preceding forty (40) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, the Chief Justice

Associate:

Date: 9 February 2001

Counsel for the appellant: Mr R Refshauge SC

Solicitor for the appellant: ACT Director of Public Prosecutions

Counsel for the respondents: Mr J Pappas

Solicitor for the respondents: pappas, j - attorney

Date of hearing: 6 November 2000

Date of judgment: 9 February 2000