Grassby v The Queen [1989] HCA 45

High Court of Australia Mason C.J. Brennan, Deane, Dawson and Toohey JJ. Grassby v The Queen [1989] HCA 45

ORDER Application for special leave to appeal granted. Appeal dismissed.

Cur. adv. vult.

The following written judgments were delivered:—

Oct. 12 Mason C.J.

I agree with the orders proposed by Dawson J. for the reasons which he gives.

Brennan J.

I agree with Dawson J. that the magistrate, having made the findings which he did, was bound by s. 41(6)(b) of the Justices Act 1902 N.S.W. to commit the applicant for trial. I agree with the reasons which his Honour gives for that conclusion and, in particular, with his Honour's analysis of the function of committal proceedings in the administration of the criminal law in New South Wales. From the conclusion that s. 41(6)(b) determined the magistrate's duty, it follows that consideration of the question whether a prosecution of the accused on indictment would amount to an abuse of process was no part of the magistrate's function. It is therefore unnecessary to repeat, for the purposes of this case, the view which I expressed in Jago v. District Court (NSW) [1] as to the meaning of abuse of process in the prosecution of criminal offences.

1. Post, p. 23.

I agree also in his Honour's observations with respect to the need for Hunt J. to have disqualified himself from sitting as a member of the Court of Criminal Appeal.

I would grant special leave to appeal and dismiss the appeal.

Deane J.

Subject to one qualification, I am in general agreement with the judgment of Dawson J. The qualification relates not to a matter of general principle but to the effect of the statutory provisions directly involved in this case. My view on that narrow question of construction leads, however, to a different conclusion about the outcome of the appeal from that reached by Dawson J.