CASE SUMMARIES 2015
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Motor Traffic and Human Rights of passenger in motor vehicle
In DPP v Kaba MC 01/2015, the passenger of a motor vehicle intercepted by police was asked to
provide details of his name and address. The passenger abusively refused to provide the details
and allegedly assaulted one of the officers. At the hearing of the charges, the Magistrate refused
to admit the police evidence. In a detailed judgment about the provisions of the Road Safety Act
1966 and Human Rights, Bell J,
HELD: Application granted. Magistrate's ruling quashed. Proceeding remitted to the magistrate for
reconsideration.
1.
The first legal issue was whether the magistrate erred in law upon the face of the record in
concluding that the police had acted unlawfully and improperly because s59(1) of the Road Safety
Act did not confer any power on them to undertake random checks in respect of the licence status
of drivers and motor vehicles. On this point the Magistrate was in error.
2.
The second legal issue was whether the magistrate erred in law upon the face of the record,
or committed a jurisdictional error, by exercising his discretion not admit the evidence upon the
basis that the police had acted unlawfully or improperly by breaching K.'s right to privacy under
the Charter and the International Covenant on Civil and Political Rights ('ICCPR'). The Magistrate
did not so err in law or jurisdiction because his approach to the interpretation and application of
the Charter (and the ICCPR) was correct.
3.
If the magistrate’s ruling in relation to the exercise of the discretion in s138(1) of the
Evidence Act not to admit the evidence had clearly been based independently upon each of these
two legal grounds, it may have been appropriate to allow it to stand. However, that was not clear.
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4.
Accordingly, the ruling was quashed by reason of the error made with respect to the
interpretation of s59(1) of the Road Safety Act 1986. The Magistrate should then be given the
opportunity to reconsider the admission or exclusion of the evidence because the conduct of one
of the police officers was unlawful or improper by reason of the breach of K.'s rights under the
Charter (and the ICCPR) which occurred.
Sentencing – Guideline Judgment for Community Correction Orders
In Boulton & Ors v The Queen MC 02/2015, the Court of Appeal released a Guideline Judgment
for sentencing courts to use on deciding whether to impose a Community Correction order.
1.
Promotion of consistency of approach to the utilisation of the matters referred to in s5(2)
of the Act is desirable for two fundamental reasons. First, the promotion of consistency of approach
is necessary to avoid the perception of injustice which may result from differences in the treatment
of individual cases. Secondly, there is a need to promote public understanding of, and confidence
in, the use of the new sentencing option by promoting the principled application of it.
2.
The CCO provisions reflect both the punitive and rehabilitative components of communitybased sentencing. The overarching principles which govern the CCO regime are proportionality
and suitability.
3.
The principle of proportionality permits the fixing of a sentence by reference to all of the
purposes of punishment — retribution, denunciation, specific deterrence, general deterrence and
protection of the community. That is, to treat the gravity of the offence as the limiting consideration
does not preclude the fixing of a sentence for purposes directed at protecting society. Secondly —
and this is an important qualification to the first proposition — the principle of proportionality
does preclude the imposition of a (longer) sentence merely for the purpose of protecting society (by
enabling the offender to be treated for a condition which contributed to the offending).
4.
The court must make its own judgment about the appropriate order, and in particular to
ensure that a CCO is carefully tailored to the circumstances, and particular needs, of the offender.
But the court’s judgment as to what is required in the particular case will, inevitably, depend
heavily on the recommendations in the pre-sentence report, not least because — unlike the court
— the maker(s) of the report will have seen and assessed the offender.
5.
It is of central importance to consider the extent of the punishment which a CCO can be
seen to inflict. While the principle of proportionality requires that a sentence not exceed what is
warranted by the gravity of the offence, the sentencing court is also obliged to satisfy itself that
the sanction imposed is no less than is required for ‘just punishment’ of the offender.
6.
The CCO option offers the court something which no term of imprisonment can offer,
namely, the ability to impose a sentence which demands of the offender that he/she take personal
responsibility for self-management and self-control and (depending on the conditions) that he/she
pursue treatment and rehabilitation, refrain from undesirable activities and associations and/or
avoid undesirable persons and places. The CCO also enables the offender to maintain the
continuity of personal and family relationships, and to benefit from the support they provide.
7.
In short, the CCO offers the sentencing court the best opportunity to promote,
simultaneously, the best interests of the community and the best interests of the offender and of
those who are dependent on him/her. On this analysis, if defence counsel submits that a CCO
would be appropriate, it is no answer for a prosecutor (or a judge) to say, ‘How could a CCO be
appropriate given that an offence of this seriousness has always received imprisonment?’ That
question should mark the beginning, not the end, of the court’s consideration.
8.
Section 5(4C) of the Act prohibits the imposition of a sentence of imprisonment unless the
sentencing court has paid specific and careful attention to the purposes for which sentence is to
be imposed on the offender and whether those purposes can be achieved by a CCO to which one
or more of the specified (onerous) conditions is attached.
9.
The sentencing court should ask itself a question along the following lines: Given that a
CCO could be imposed for a period of years, with conditions attached which would be both punitive
and rehabilitative, is there any feature of the offence, or the offender, which requires the conclusion
that imprisonment, with all of its disadvantages, is the only option?
10.
There are several reasons why a CCO can very effectively serve the purpose of specific
deterrence. First, because it will be a real punishment, it should deter repeat offending. Secondly,
there is the mandatory condition attached to every CCO, prohibiting the commission of an offence
punishable by imprisonment. The commission of such an offence will potentially lead to the
imposition of three separate penalties, as follows: a penalty for the offence itself; a penalty for the
contravention of the CCO condition; and a resentencing for the original offence in respect of which
the CCO was first imposed. These provisions, in combination, create ‘powerful disincentives’ to reoffending, which last for the full length of the CCO.
11.
The CCO can be used to rehabilitate and punish simultaneously. This significantly
diminishes the conflict between sentencing purposes, particularly acute in relation to young
offenders. No longer will the court be placed in the position of having to give less weight to
denunciation, or specific or general deterrence, in order to promote the young offender’s
rehabilitation. Rather, the court will be able to fashion a CCO which adequately achieves all of
those purposes.
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12.
It is a condition of the making of a CCO that the offender consents to the order. No doubt
Parliament intended that there be a meaningful, informed consent, not a mere formality. There
are good reasons for this. The most obvious is that a CCO imposes significant personal
responsibility on the offender. Depending on the nature and extent of the conditions attached, the
offender may need to re-organise his/her life and daily activities to a very substantial degree.
Moreover, given the serious consequences of breach, it is both appropriate and necessary for the
court to be satisfied that the offender’s consent is based on an adequate appreciation of the
seriousness of the responsibility being undertaken. Consequently, in order to ensure that the
offender’s consent is properly informed, the sentencing court will need to satisfy itself, before the
consent is given, that the offender has been made aware of the proposed length of the order and
of the proposed conditions and those representing the offender have had a reasonable opportunity
to explain to him/her the nature and effect of the proposed conditions and what compliance with
them is likely to involve, together with the serious consequences of non-compliance.
Occupational Health and Safety – validity of charges
In Glenister v The Magistrates’ Court of Victoria and Baiada Poultry Pty Ltd MC 03/2015, four
charges were laid against an employer after an employee was killed whilst cleaning a chicken
processing chain line. The Magistrate dismissed all of the charges on the ground that the charges
did not provide reasonable information as to the nature of the charges and that the charges could
not be amended.
HELD: Appeal dismissed in respect of charges 1, 2 and 3. Appeal allowed in respect of Charge 4
and remitted to the Magistrates' Court for hearing according to law.
1.
The requirements for a valid criminal charge at common law are that the charge has to
state the essential elements of the offence with which the defendant is charged and detail the time,
place and manner of the defendant’s acts or omissions. The charge can be amended after the
expiration of the limitation period provided the amendment does not substitute a new charge.
2.
Under the Criminal Procedure Act 2009 ('CPA'), the charge-sheet must state the offence and
contain the particulars that are necessary to give reasonable information as to the nature of the
charge. Although there is no set formula, the particulars required will usually include the time,
place and manner of the acts charged and other particulars of the act, matter or thing alleged by
the informant as the foundation of the charge.
3.
The Court can only permit the amendment of a charge after the expiration of the limitation
period if the three criteria listed in s8(4) of the CPA are established. The first is that the chargesheet before amendment sufficiently disclosed the nature of the offence. The other two
requirements are that the amendment does not amount to the commencement of a proceeding for
a new offence and that the amendment will not cause injustice to the accused.
4.
The Magistrate did not err in concluding that the VWA was required to specify in charges
1, 2 and 3 the elements of the offence that imposed on BP/L the duties of an employer to the
employee who was killed. Without the specification of that information, charges 1, 2 and 3 did not
state the essential elements of the offence and did not give reasonable information as to the nature
of the charges.
5.
Because charges 1-3 did not contain the essential elements of the offence, the charge-sheet
before the amendment did not sufficiently disclose the nature of the offence and could not be
amended under the power contained in s8(4)(a) of the CPA.
6.
The Magistrate erred in deciding that the charges needed to detail why the VWA alleged
that BP/L, rather than Ecowize, should have performed particular tasks. These details were
matters of evidence at trial. Those matters were not essential elements of the offences nor were
they required to give reasonable information as to the nature of the charges. BP/L's contention
that it discharged its duty by engaging Ecowize was a matter to be considered on the hearing of
the charges.
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7.
Accordingly, the Magistrate's decision that Charge 4 did not sufficiently disclose the nature
of the offence and could not be amended was an error of law and was remitted to the Magistrate
for hearing according to law.
Speeding charge – informant’s statement defective in a particular
In Banks v Bice MC 04/2015, a speeding charge was heard ex parte and the defendant convicted
and fined. On appeal, it was argued that the informant’s statement was not admissible in evidence
because it failed to prove that the device had been used in the prescribed manner.
HELD: Appeal allowed. Magistrate's orders set aside. Banks found guilty of exceeding the speed
limit by less than 10km/h and fined $300 with $73.20 statutory costs. No order as to the costs of
the appeal.
1. There was no evidence that the laser device had been used in accordance with reg 45(a) of the
Road Safety (General) Regulations 2009. There was nothing in the police informant's statement
indicating that he had ensured that all elements of the speed display had been illuminated.
2.
Accordingly, evidence of the speed of the vehicle was not admissible before the Magistrate.
However, there was clear evidence establishing beyond reasonable doubt that the driver had driven
at a speed in excess of the prescribed limit. Thus it followed that the conviction recorded by the
Magistrate was to stand.
3.
In the circumstances, the most efficient and appropriate method of disposing of the appeal
was to re-sentence appellant and find her guilty of the offence of exceeding the prescribed speed
limit of 60km/h by less than 10km/h and be fined $300 together with the statutory costs of
$73.20.
Rodger v Wojcik [2014] VSC 308; MC 16/2014, applied.
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4.
In relation to the costs of the appeal, no order was made. Firstly, Banks only succeeded in
part. The appellant failed to set aside the conviction for the offence and failed to obtain an answer,
in her favour, on the one question of law that was stated in the notice of appeal. Secondly, the
point, on which the appeal succeeded, was not taken by or on behalf of the appellant in the
Magistrates’ Court. The point, on which the appeal succeeded, was not one of substance. It was
technical in nature, consisting of the failure of the informant, in the summary statement contained
in the brief of evidence, to establish one of the four pre-requisites to the admissibility of the
measurement of the speed of the vehicle driven by the appellant.
Costs in a civil proceeding – Calderbank offers discussed
In Gill v Gill (No 2) MC 05/2015, the aspects of a Calderbank Offer were discussed in some detail
by Derham AsJ.
HELD: The plaintiff ordered to pay the defendant's costs on a party/party basis up to a certain
date, on a standard basis from another date and on an indemnity basis from another date.
1.
Although costs are in the discretion of the Court, there is a settled practice (sometimes
called a general rule) that in the absence of good reason to the contrary a successful litigant should
receive his or her costs. Like every question of costs, it is in the discretion of the court and is to
be decided according to the circumstances of the particular case.
2.
In relation to Calderbank offers, the critical question is whether the rejection of the offer
was unreasonable in the circumstances. Deciding whether conduct is unreasonable involves
matters of judgment and impression. When considering whether the rejection of a Calderbank
offer was unreasonable, a court should ordinarily have regard at least to the following matters:
(a) The stage of the proceeding at which the offer was received;
(b) The time allowed to the offeree to consider the offer;
(c) The extent of the compromiser offered;
(d) The offeree’s prospects of success, assessed at the date of the offer;
(e) The clarity with which the terms of the offer were expressed; and
(f) Whether the offer foreshadowed an application for indemnity costs in the event of the
offeree’s rejecting it.
Hazeldene’s Chicken Farm Pty Ltd v Victorian WorkCover Authority (No 2) [2005] VSCA 298;
(2005) 13 VR 435, 441–2, applied.
3.
A review of the reasons for judgment in this proceeding showed that although the plaintiff
failed, the issues canvassed were complex and involved quite difficult questions of construction of
the Magistrates’ Court Act and Magistrates’ Court Rules. Even though the result was favourable to
the Defendant, it was not so clear that it should be concluded that the plaintiff ought to have
known that he had no chance of success. It follows that there was no basis for the proposition
that the plaintiff had commenced or continued the proceeding for some ulterior motive or because
of some wilful disregard of the known facts or clearly established law.
4.
It was also clear, that the First Offer (31 January 2013) was not open for a sufficient time
to enable the plaintiff properly to consider it and it was therefore not unreasonable for the plaintiff
to have failed to respond to it. Moreover, the First Offer was accompanied by extensive, and in
significant respects, irrelevant contentions and allegations. They showed an entrenched
intolerance to the arguments and position of the plaintiff and his legal advisors and a distinctly
combative approach to the conduct of the litigation. That approach by the representatives of the
Defendant continued throughout the proceeding. It included a prolix affidavit sworn by Mr
Staalkjaer on 15 March 2013 containing a considerable amount of irrelevant matters.
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5.
The appropriate time for the defendant to have her costs on an indemnity basis was at the
time of the expiry of the Fourth Offer on 1 August 2013. The First and Second Offers were
premature and were affected by provocative allegations and assertions that were not relevant to
the proper assessment of the risks of the plaintiff failing in the proceeding. That Third Offer was
sullied by the presence of irrelevant and provocative allegations of the preparation of false
affidavits, but it did follow the filing and service of the Defendant’s Submission, which it must be
said proved to be substantially correct – in both the result and the essential reasoning. Although
the effect of the allegations of the preparation of a false affidavit contained in the letter making the
Third Offer was a significant factor against a finding that the Offer was unreasonably refused, the
fact of the making of that offer impacted and reinforced the view taken about the Fourth Offer.
The preparedness of the Defendant to compromise the proceeding and the fact that a discount
against assumed costs of 50% was offered, was significant. The letter containing the Fourth Offer
did not contain any irrelevant or provocative material.
Sentencing – CCO orders
In McAleer v R MC 06/2015, the Court of Appeal (Priest and Beach JJA) granted an appeal against
a sentence of immediate imprisonment.
HELD: Appeal granted. McA. sentenced to a community corrections order (CCO) of two years'
duration.
1.
When viewed against McA's youth, her previous good character and lack of prior
convictions, her early plea of guilty, her good prospects of rehabilitation and the influence exerted
over her by her older paramour, her offending did not merit a sentence of imprisonment
immediately to be served.
2.
In relation to the recent judgment of the Court of Appeal in Boulton v R [2014] VSCA 342,
a CCO is by its nature punitive, and a CCO may be appropriate even for offences of some
seriousness (and which might previously have attracted a sentence of imprisonment).
3.
In the present case, there was no feature of the offence, or the offender, which required the
conclusion that imprisonment, with all of its disadvantages, was the only option. Rather, it was a
case where the peculiar features of the offending, and of McA., supported the conclusion that a
CCO was eminently appropriate and that the sentence of imprisonment imposed was manifestly
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excessive. Consistently with Boulton, the proper exercise of discretion dictated that McA. should
have been sentenced to a CCO of a duration of two years on both charges.
Children’s Court dealing with serious offence
In C v Children’s Court of Victoria and Ors MC 07/2015, the Children’s Court granted an
application by the DPP that rape charges laid against the defendant were not suitable for summary
determination and should proceed as a committal hearing. Upon appeal before Beale J:
HELD: Order quashed. Matter to be returned to the Children's Court for summary determination
by a different member of that Court.
It was not reasonably open for the Magistrate to find that the case was, ‘unsuitable by reason of
exceptional circumstances to be determined summarily’. Rape is a most serious offence but
Parliament has decided that rape charges against children should ordinarily be heard in the
Children’s Court. The two rape charges brought against the plaintiff were not at the upper end of
the spectrum of rape offences: they were mid-range instances of that offence. Further, the
plaintiff’s criminal history was limited. Most importantly, he had no priors for sexual offences and
had never been sentenced to detention. Having regard primarily to these considerations and the
principle that the Children’s Court should only surrender its jurisdiction with ‘great reluctance’,
the Magistrate's decision to refuse a summary hearing was a jurisdictional error.
Dismissal of a civil proceeding where document unavailable would cause unfairness to a
party.
In Hammill v Campbell & Anor MC 08/2015, a magistrate struck out the plaintiff’s civil complaint
because of unfairness to the defendant due to unavailability of documents. Upon appeal to
McMillan J:
HELD: Plaintiff's appeal dismissed.
1.
Under s89B(1)(c) of the Evidence (Miscellaneous Provisions) Act 1958, a civil proceeding can
be dismissed if the unavailability of a document is likely to cause unfairness to a party to the
proceeding.
2.
There were two key issues before the Magistrate where the plaintiff claimed he had been
denied the opportunity to respond to matters in the first defendant’s affidavit which, in turn,
prevented him from receiving a fair hearing: the evidence pertaining to the destruction of bank
documents after seven years and the evidence of the two cheques made out to ‘Heath William
Campbell trading as Condon Street Motors’.
3.
In respect of the first issue, the formal basis for the request to provide material to explain
the existence of the bank policy of destroying documents was a request to the Magistrate that the
Court "make any ruling law [sic] that the Court considers necessary to ensure fair-ness to all
parties to the proceeding". That this request should be transformed into a refusal by the Magistrate
to grant an adjournment was a not a proper basis for claiming the plaintiff was denied the right
to respond. It could not be construed as an application for an adjournment.
4.
In respect of the second issue, the plaintiff made a type of request in that he wanted an
opportunity to explain evidence in relation to the two cheques. His request for an ‘opportunity to
explain’ was vague and unclear and was not a request for an adjournment. The solicitor for the
plaintiff agreed that he did not make an application for an adjournment before the Magistrate.
5.
The Magistrate's reasons for dismissing the application were based upon the lack of
documents providing evidence for the alleged transfer of payments from the plaintiff to the first
defendant, due in part to the bank policy of destroying documents that were over seven years old
and the prejudice that flowed from these documents being unavailable. Thus, with the existence
of the two cheques not being material to the Magistrate's findings, it could not be said to be a
‘relevant and significant’ consideration in the outcome of the case.
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6.
The Associate Justice was correct in finding that no application for an adjournment had
been made at the hearing before the Magistrate and his Honour did not err in dismissing the
plaintiff’s claim on the ground of a lack of procedural fairness.
Costs – denial of procedural fairness in disallowing certain items for costs
In Kuek (Trading as Access Law) v Victoria Legal Aid & Anor MC 09/2015, a magistrate disallowed
certain costs on several grounds. Upon appeal to McDonald J:
HELD: Appeal upheld. Certain orders of the Magistrate quashed and the taxation of the bill of
costs remitted for rehearing by a different Magistrate.
1.
The plaintiff was denied procedural fairness by reason of non-disclosure by the Deputy
Chief Magistrate (DCM) of the prospect of non-allowance of the 61 items on the basis that Scale G
did not prescribe an amount for these items. VLA had not made any such submission. To the
contrary, it had submitted that absent any allowance being made by Scale G, allowance should
be made by reference to Scale D of the County Court cost scale. Whilst VLA contended that the
amount claimed by the plaintiff in respect of these items was excessive, it made no submission to
the effect that no allowance should be made. The prospect of this being an outcome was not ‘in
the ring’. Had Access Law been alerted to this possible outcome, it would have been able to make
submissions in opposition to it.
2.
Accordingly, having found a breach of procedural fairness, the appropriate course was to
quash paragraph 1 of the DCM’s Orders and remit the hearing of the taxation of the plaintiff’s bill
of costs to be heard by a magistrate other than the DCM. The primary consideration in the exercise
of the discretion conferred by s131 of the Magistrates’ Court Act will be what is just and reasonable
in the circumstances.
3.
VLA did not submit before the DCM that Mr Lavery’s fees for preparation prior to 9
February 2009 should be reduced by reason of inadequate particulars and/or that Mr Hancock’s
fees for preparation prior to 22 March 2010 should be disallowed by reason of lack of particulars.
The prospect that the fees of Mr Lavery and Mr Hancock would be reduced or disallowed on this
basis was not an issue which was raised by either VLA or by the DCM. Access Law was denied
procedural fairness by being denied the opportunity to provide further particulars relating to the
preparation which was undertaken by Mr Lavery in advance of the hearing on 9 February 2009
and by Mr Hancock in advance of the hearing on 22 March 2010.
4.
The amount in issue as a result of upholding Ground 2 in respect of the reduction of Mr
Lavery’s preparation fees, and the disallowance of Mr Hancock’s preparation fees — being $3,850
— was insignificant. Nevertheless, consistent with the Court of Appeal judgments in a finding that
there has been a denial of procedural fairness, coupled with the conclusion that there is utility in
a rehearing taking place, leads to the conclusion that paras 3(b) and (d) of the DCM’s Orders must
be quashed. Consequently, the taxation of the items of counsel’s fees will need to be heard afresh
by a different magistrate.
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5.
It was clear from the extracts from the DCM's Reasons that the DCM expressly considered
the submissions advanced by Access Law that indemnity costs should be awarded by reason of
the conduct on the part of VLA. There was no error on the face of the record. The DCM considered
the submissions of Access Law and rejected them. Ground 4 was dismissed.
Drink/driving: proof of breath test instrument by Certificate
In O’Connor v Bradshaw and The County Court of Victoria MC 10/2015, the Court of Appeal dealt
with a decision whereby it was held that the breath test was conducted on an approved breath
analysing instrument.
HELD:
Appeal dismissed.
1.
Section 58 of the Act provides for the use of a ‘document purporting to be a certificate
containing the prescribed particulars’ to prove certain matters. In fact, the section provides that
in certain circumstances the certificate is to be taken as ‘conclusive proof’ of the ‘facts and matters
contained in it’. When an accused person gives notice in writing to the informant pursuant to
s58(2), s58(2D) provides that the certificate no longer provides ‘conclusive proof’ of the facts and
matters that it contains. However, that subsection provides that the certificate still remains
admissible in evidence. In so far as it is admissible in evidence, it is plainly admissible as evidence
of its contents.
2.
Once the certificate was tendered, the facts and matters contained within it became
evidence of the truth of those facts and matters. The words ‘Alcotest 7110’, which headed the
certificate, were as much evidence of the fact that the certificate was produced by such an
instrument as each of the other facts or matters contained in the certificate (such as the location
of the test, the name of the operator and the result of the test) was evidence of that fact or matter.
Furze v Nixon [2000] VSCA 149; (2000) 2 VR 503; (2000) 113 A Crim R 556; (2000) 32 MVR
547; MC 04/2001; and
Impagnatiello v Campbell [2003] VSCA 154; (2003) 6 VR 416; (2003) 39 MVR 486, applied.
3.
The first critical matter was what the police informant said, not what the transcript
recorded her as saying. It seemed reasonable to infer that she made a slip when reading out what
numbers were contained on the plate; and it also seemed reasonable to infer that her reference to
the numbers namely ‘353075191’ was just a mistake that was immediately corrected. The primary
judge listened to the tape of what was said (which gave him access to evidence superior to what
was contained in the transcript) and concluded that what was said was just such a slip. Secondly,
there was evidence that the instrument did have inscribed on it the numbers ‘3530791’. That was
the oral evidence given by the informant. On the strength of that oral evidence alone, it was open
to the judge in the County Court to make the necessary finding. The fact that there was other
evidence did not mean that there was no evidence.
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4.
There was oral evidence that the instrument bore the numbers required by the statute. No
error of law was established when all that was established was that the finder of fact had preferred
some evidence to other evidence.
Indictable offence – defendant applied for a committal hearing in advance of a summary
hearing
In Gild v Magistrates’ Court of Victoria MC 11/2015, a magistrate refused an application by a
person charged with an indictable offence triable summarily for a summary hearing after the
committal hearing concluded. Upon appeal to Dixon J:
HELD: Originating motion dismissed.
1.
There being no basis in law for the application for certiorari, it was refused. Moreover,
there was no basis demonstrated for mandamus as W. had not demonstrated any unperformed
public duty that the Magistrate might be directed to perform. This application to the Supreme
Court was misconceived and flew into the face of established authority.
2.
There are only three courses open to a Magistrate at the conclusion of the committal.
Contrary to W.'s contention, committal to a trial under Part 3.3 of the Criminal Procedure Act
2009 ('Act'), which is a summary hearing, is not an available option. Here W. was committed for
trial on indictment in the County Court on the charge brought by the third defendant. That charge
was for an indictable offence. Although there was no dispute by anybody that it was suitable for
summary determination, W. did not consent to that procedure. The Magistrate refused his request
for a committal hearing before he consented to summary jurisdiction. No error was shown in this
decision.
3.
Section 158 of the Act provides that the provisions of Chapter 5 apply to an accused
person committed for trial at a committal under Chapter 4 of the Act. There is no provision in the
Act that permits an accused person a summary hearing under Chapter 3 upon committal for trial
under Chapter 4 of the Act. Although the process was not exhausted that enabled an accused
person charged with an indictable offence that may be summarily tried to consent to a summary
hearing, that outcome could not be achieved by an order committing W. for trial.
4.
A summary hearing may occur in accordance with the procedure outlined above. W. was
given every opportunity to consent to a summary hearing but declined to do so. Moreover, the
Magistrate determined the submission that the court had power to, but would not in its discretion,
offer W. a summary hearing at the conclusion of the committal hearing before ruling on whether
to discharge W. Having rejected that submission, the committal hearing proceeded to
determination and the Magistrate was required to act in accordance with s141(4) of the Act. The
Magistrate at that point had no power to commit W. for trial by a summary hearing, and her
decision to commit W. to trial on indictment before the County Court was not amenable to judicial
review under Order 56 of the Rules.
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5.
W.'s Originating Motion did not directly challenge the Magistrate's decision, at the
conclusion of the evidence taken in the committal hearing to reject W.'s submission that on any
reading of the Act there was an entitlement to a committal hearing ahead of a summary hearing
and that, in the exercise of her discretion the Magistrate did not again offer the plaintiff a summary
hearing. Even if it did, the Magistrate did not err in law, either in construing the terms of the Act
that govern the procedure at committal hearings or in the procedure that she adopted. There was
no entitlement under the Criminal Procedure Act, or otherwise, to a committal hearing in advance
of a summary hearing and the provisions that enabled a committal hearing to continue as a
summary hearing did not require otherwise.
Application for a proposed Pseudonym Order
In Hunter v Australian Football League & Anor MC 12/2015, a proposed plaintiff applied to Dixon
J for a pseudonym order.
HELD:
1.
The making of a pseudonym order limits the extent of non-disclosure to the identity of a
party to the proceeding or a single person within a proceeding, and otherwise does not affect the
capacity of the media or anybody who sits within the body of the court to appreciate what is taking
place in the proceeding before the court. In other words, there is complete openness and
accountability in the court's processes, save that an identity is not revealed.
2.
No reason for a pseudonym order had been advanced by the applicant nor was there any
cogent proof, only assertion by the applicant’s solicitor, of any matters that might properly be
relied on to enliven the jurisdiction. There was no risk of prejudice to the administration of justice
if a pseudonym order was not made and the applicant’s solicitor was not able to point to any
matter raised on the evidence that might have indicated that there was such a risk. Further, there
was no cogent reason why a pseudonym order should have been made.
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Drink/driving charge lacked detail insofar as provisions of Act
In Walters v County Court of Victoria and Bouchier MC 13/2015, it was submitted that the charge
in relation to the refusal to undergo a preliminary breath test was that none of the four subsections in s53(1) of the Road Safety Act 1986 were disclosed in the charge-sheet. And that if the
charge was not properly framed, it was not appropriate for the Magistrate to permit amendment
of the charge outside the limitation period. W. was found guilty in the Magistrates’ Court and later
in the County Court. Upon appeal:
HELD: Application for review of the Magistrates' Court and County Court orders dismissed.
1.
In relation to s53(1) of the Act, there are four situations whereby a police officer may require
a driver to undergo a preliminary breath test. However, the charge did not specify which situation
applied in W'.s case. It simply specified s53(1) of the Act.
2.
It is an offence to ‘refuse to undergo a preliminary breath test in accordance with s53 of
the Act when required under that section to do so. Looking at the wording of the various subsections in s53, there are only two separate requirements that can be made: a requirement to
undergo a preliminary breath test under s53(1) and a requirement to undergo a preliminary breath
test under s53(2).
3.
As such, s49(1)(c) can only create two separate offences: a refusal to undergo a preliminary
breath test in accordance with s53 when required to do so under s53(1), and a refusal to undergo
a preliminary breath test in accordance with s53 when required to do so under s53(2). Even if it
is accepted on the basis of the cases referred to above that the requirement is an essential element
of the offence, there is only one requirement of s53(1), a requirement to undergo a preliminary
breath test. It does not follow that the basis on which the requirement is made is an essential
element of the offence.
4.
A charge is to be interpreted in the way in which a reasonable defendant would understand
it, giving reasonable consideration to the words of the charge and their context. If, therefore, the
contents of the charge and the summons were sufficient when read as a whole to bring home to a
reasonable defendant the essential elements of the offence alleged, the charge would not be invalid.
5.
Accordingly, the charge-sheet in this case met such a description and, as such, should not
have been considered to have been invalid.
6.
Generally, if a charge is sufficient to disclose the offence itself and the nature of the charge,
s9 of the Criminal Procedure Act 2009 ('Act') operates to make the charge itself valid
notwithstanding any technical error or omission in the drafting of the charge-sheet. As such, any
charge-sheet that met the criteria for amendment after the expiry of the limitation period would
also satisfy the test for validity under the CPA.
7.
Given that the charge-sheet in this case appeared to comply with the requirements of cl 1
of Schedule 1 to the CPA, it was held to be valid as originally framed. Thus, the Magistrate’s
decision to amend the charge-sheet after expiry of the limitation period was upheld and W.'s review
was dismissed.
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8.
In relation to the review of the County Court appeal, the County Court judge did not fall
into error by considering only the amended version of the charge-sheet, as the appeal was one
relating to sentence only, rather than to conviction and sentence. As such, the Judge was satisfied
in starting from the point of conviction and taking the charge in facts as they were at that point.
The rehearing was on the question of sentence only. As a result, the operative conviction orders
were those of the Magistrates’ Court, whereas the operative sentencing orders were those of the
County Court.
Application by media for copy of the Record of Interview
In DPP v Williams MC 14/2015, the media applied for a copy of a record of Interview.
HELD: Application refused.
1.
Parliament has created a statutory scheme by which the courts are the only bodies
entrusted with the power to control who has access to, and what use may be made of, records of
interview. That power may be exercised at any stage from the time of a person’s arrest, up to and
including any trial, and beyond.
2.
Section 464JB of the Crimes Act 1958 is drafted in broad terms, and does not purport to
describe the circumstances in which the court’s discretion may be exercised.
3.
The following is a non-exhaustive list of factors which may be relevant in considering the
exercise of the court’s discretion under s464JB. In each case, the court must consider for itself
whether those (or any other) factors are relevant in that case and, if so, what weight to give to the
relevant factors:
(a) The privacy of the interviewee, interviewers, and others mentioned in the interview;
(b) Whether the interviewee consents to the release;
(c) The attitude of other people affected by the interview;
(d) Whether any person (such as victims or children) would be adversely affected by release;
(e) Whether the record of interview discloses graphic details of offending;
(f) Whether any criminal investigations or trials are ongoing;
(g) Whether release may undermine the integrity of the criminal justice process;
(h) The level of contemporaneous public interest in the case;
(i) Whether release will enhance the fair and accurate reporting of the case;
(j) The principle of open justice (where the record of interview has been played in open
court); and
(k) The nature of the proposed publication.
4.
Public awareness of the insidious problem of domestic violence is increasing. The media
has an important role to play in raising that awareness. If victims of domestic violence wish to
come forward and tell their stories publicly, that is a matter of personal choice. But if victims of
domestic violence do not wish to have the details of their private lives exposed to public scrutiny,
care needs to be taken to ensure that those victims are not further traumatised by unnecessary
publicity.
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5.
Having weighed up the countervailing arguments in this case, the ROI should not be
released to Nine Network. The application was refused.
A defendant’s application to withdraw a guilty plea was refused
In Grant v Local Court of NSW and DPP (NSW) 15/2015, a defendant pleaded guilty to common
assault but later unsuccessfully applied to the Magistrate to withdraw the plea.
HELD: Appeal dismissed.
1.
The principles governing an application to withdraw a plea of guilty are well settled and
are as follows:
(a) There is a well-recognised discretion to allow a person leave to withdraw a plea of guilty,
at least prior to conviction.
(b) The Court may, in the exercise of discretion, grant leave to a person to withdraw a plea
of guilty at any time before sentence is passed. Each case must be looked at in regard to
its own facts and a decision made whether justice requires that such a course be taken.
(c) The onus lies upon the Applicant to demonstrate that leave should be granted and must
establish a good and substantial reason for the Court taking the course of granting leave
to withdraw the plea. An application to withdraw a plea of guilty is to be approached with
caution bordering on circumspection.
(d) The plea of guilty itself is a cogent admission of the ingredients of the offence and it has
been described as the most cogent admission of guilt that can be made.
(e) On an application for leave to withdraw a plea of guilty, the question is not guilt or
innocence as such but the integrity of the plea of guilty.
(f) A person may plead guilty upon grounds which extend beyond that person's belief in his
guilt, and the entry of a plea of guilty upon such grounds nevertheless constitutes an
admission of all the elements of the offence, and a conviction entered upon the basis of
such a plea will not be set aside on appeal unless it can be shown that a miscarriage of
justice has occurred, and this will normally only arise where the accused person did not
understand the nature of the charge, or did not intend by his plea to admit his guilt of it.
(g) Where an application is made for leave to withdraw a plea of guilty, evidence ought be
adduced from the accused person as to the circumstances in which he or she came to plead
guilty.
(h) The various circumstances identified by Spigelman CJ in R v Hura [2001] NSWCCA 61;
(2001) 121 A Crim R 472 at 478 [32] provide assistance where application is made for leave
to withdraw a plea of guilty. These are:
(1) Where the Appellant ‘did not appreciate the nature of the charge to which the plea
was entered’.
(2) Where the plea was not ‘a free and voluntary confession.
(3) The ‘plea was not really attributable to a genuine consciousness of guilt’.
(4) Where there was ‘mistake or other circumstances affecting the integrity of the plea
as an admission of guilt’.
(5) Where the ‘plea was induced by threats or other impropriety when the applicant
would not otherwise have pleaded guilty ... some circumstance which indicates that the
plea of guilty was not really attributable to a genuine consciousness of guilt’.
(6) The ‘plea of guilty must either be unequivocal and not made in circumstances
suggesting that it is not a true admission of guilt’.
(7) If ‘the person who entered the plea was not in possession of all of the facts and did
not entertain a genuine consciousness of guilt’.
R v Wilkinson (No. 4) [2009] NSWSC 323; 195 A Crim R 20, applied.
2.
It was for G. to demonstrate error of law before either of the forms of relief sought may be
granted in this case. The Supreme Court was not undertaking a rehearing of the application for
leave to withdraw the plea of guilty.
3.
The Magistrate did not apply the wrong principles of law in considering G.'s application.
The Magistrate had a clear understanding of the relevant principles with the judgment to Howie J
in Wong being of assistance in this case. The Magistrate focused upon the circumstances
surrounding the entry of G.'s plea of guilty and concluded that G. appreciated what was involved
in her plea of guilty. Further, as the Magistrate noted, G. conceded on oath that she had hit the
Complainant other than in self-defence.
4.
Accordingly, it was open in law to the Magistrate to conclude that G. had failed to
demonstrate good and substantial reasons to allow the plea of guilty to be withdrawn.
5.
In relation to the ground of appeal that the Magistrate failed to give adequate reasons for
dismissing G.'s application, it is not the duty of a Magistrate to decide every matter which is raised
in argument. The decision of a particular submission may be an essential part of the reasoning
towards the Magistrate’s final conclusion. It is not open to a party on appeal to complain that
reasons were not given for the decision of a matter of fact or law which was, or must have been,
decided, if the matter was not the subject of submissions made to the court below in a way which
called for a reasoned consideration of them.
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6.
In reading fairly the entirety of the Magistrate’s reasons, the issues falling for consideration
were addressed by him and it was not demonstrated that the Magistrate failed to give reasons as
required by law.
Contempt of court – defendant used Facebook and the internet to intimidate Court
In The Queen v Bonacci (No 2) MC 16/2015, the defendant used posts on Facebook and the internet
with the intention of intimidating the County Court from conducting proceedings.
HELD: B. sentenced to a total effective term of six weeks' imprisonment and ordered to pay the
costs of the applicant on an indemnity basis.
1.
B. committed a contempt of court by sending each of the seven emails to the County Court
and to the Judge, because each of them were intended to influence, place improper pressure on,
and intimidate or threaten, the judge in the performance of his duties in the hearing of the criminal
charges.
2.
The fundamental function of the law of contempt is to protect the administration of justice
in our courts, by upholding and preserving the undisturbed and orderly processes of the courts
according to law. In particular, the law of contempt protects and preserves the capacity of the
courts to dispense justice in a fair, unbiased and principled manner, unaffected by, and
independent of, any inappropriate external influences or interference. In that way, the law of
contempt is directed to protect the rights of litigants before the courts, and to preserve public
confidence in our system of justice. The principal purposes of sentences for contempt, which are
designed to achieve those ends, include specific deterrence, general deterrence and denunciation.
3.
Bearing in mind those purposes, the considerations, that are relevant to the imposition of
a sentence for contempt, include the objective seriousness of the particular contempt, the
circumstances in which the contempt occurred, whether any harm was occasioned by the
contempt, the subjective culpability of the person convicted of the contempt, the character and
antecedents of the contemnor, and whether any apology has been made by the contemnor for the
contempt.
4.
The conduct of B. was serious. It directly related to serious criminal proceedings that were
then before the County Court. The specific, and express, purpose of each of the publications made
by B. was to intimidate and deter the County Court from proceeding with those cases. While that
purpose was misconceived, and was bound to fail, nevertheless it was entirely unacceptable and
reprehensible. Conduct, of the type engaged in by B., was calculated to strike at one of the most
critical foundations of our legal system, namely, the dispensation of justice by our courts free from
improper external pressures and influences.
5.
It is of the highest importance that our courts be free to administer justice independently,
objectively and impartially, and free from any improper external influences and interference. It is
that principle that distinguishes, and demarcates, our courts from those in countries which do
not afford to their citizens the democratic rights and freedoms enjoyed by citizens of this country.
Taking into account the matters referred to, B.'s conduct was, accordingly, particularly grave. If
courts were to display any tolerance towards such conduct, our system would be readily degraded,
and the rights of citizens in this country would be substantially diminished.
6.
The sentence must be of sufficient severity to deter others, who might be minded to engage
in the same type of conduct as that indulged in by B. In addition, the sentence must be sufficient
to constitute a specific deterrent to B., and, in particular, to impress upon him that he cannot
indulge in that type of conduct with impunity. In this respect, the continued defiance by B. of the
court’s processes did lend greater importance, in this case, to the factor of specific deterrence.
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7.
B. was sentenced to a total effective sentence of 6 weeks’ imprisonment. In addition, this
was an appropriate case in which to order that B. pay the applicant’s costs on an indemnity basis.
The case had to be adjourned on a number of occasions because of the lack of co-operation of B.
and because of his failure to attend court and answer the charges against him. The deliberate
defiance by B. of the court’s processes resulted in a substantial increase in the costs incurred by
the applicant in prosecuting the proceeding. Accordingly, B. was ordered to pay the applicant’s
costs, including any reserved costs, on an indemnity basis.
Whether an award for damages should be GST-Exclusive
In Millington v Waste Wise Environmental Pty Ltd MC 17/2015, an appeal was dealt with in respect
of a Magistrate’s decision to make an award of damages which included GST.
HELD: Notice of Appeal made out. Magistrate's order in relation to the GST component set aside.
1.
Payment by an insurer to a non-insured third party does not constitute consideration for
a supply to the insurer by that third party. Accordingly, the insurer will ordinarily not be entitled
to an input tax credit in respect of such a payment made to a non-insured entity. The only relevant
entity which would have been able to claim any input tax credit for the GST paid on the repairs to
the garbage truck was WW., as the insurance company was simply meeting M.'s liability, as no
taxable supply was made by the insurance company.
2.
The first ground upon which this appeal was brought was that, in finding that WW.’s loss
and damage was GST inclusive, the Magistrate failed to apply the compensatory principle
correctly. The compensatory principle is that the object of an award for damages is to provide a
sum of money the effect of which is to place the party who has been injured in the same position
they would be in if they had not sustained the wrong for which they were now being compensated.
In general terms, a court will award compensation for all losses that a plaintiff would not have
suffered but for the wrong. Conversely, an injured plaintiff is not entitled to make a profit in an
action in tort or contract; in other words, to be awarded damages for a loss never suffered.
3.
It is clear when one looks at the decisions in certain legal cases that the keystone in the
decision-making process is the concept of certainty. The amount of the loss suffered by WW. was,
and had been, clearly quantified. In those circumstances, an order for a fixed sum of money could
have readily been made, without the need for any secondary amount to be paid back, or indemnity
provided, to any party in order to comply with the compensatory principle.
4.
The Magistrate failed to properly apply the compensatory principle.
5.
The second ground of appeal was that in providing that WW. was obliged to pay an amount
of money back to M. after the time by which a tax refund may be received had elapsed, the Orders
breached the “once-and-for-all” rule for damages.
6.
It will often be the situation that the task of calculating an amount of damages which will
put the plaintiff in exactly the position they would have been if not for the loss will be an impossible
one. Compensation to be paid to a plaintiff will often be more a matter of judgment rather than
some precise calculation based on certain integers or events, though such judgment should always
be formed after an examination of the estimates and calculations as can reasonably be made. It
has also been said that the difficulty inherent in the assessment of damages provides no reason
for the courts to avoid the task of arriving at the estimate most likely to provide fair and reasonable
compensation.
7.
While the “once-and-for-all” rule is rightly seen as a long-standing common law rule, clearly
there are numerous examples where courts have been prepared to make an award of damages in
a manner that provides, as accurately as possible, an appropriate amount to compensate a party
for the loss suffered, even if a lack of certainty as to the actual amount has led to the orders being
at odds with any “requirement” to provide a once-off, lump sum payment for damages.
8.
While there may be situations where the particular circumstances of a proceeding may be
such that it is appropriate, indeed preferable, for the court to make orders of the type made in
Provan in order to achieve greater accuracy in the calculation of damages, the preferred approach
must always be to provide an order which as accurately as possible compensates the party for the
loss suffered in a single, “once-off” payment. Where this is impossible to achieve, given the
commercial complexities of the proceeding, the orders of the type made in Provan and the
authorities which have followed that line of reasoning may be appropriate where liability has been
determined to achieve finality in the litigation, save for the final calculation of the amount of
damages. In any event, this was not a proceeding where any need arose to make any order other
than a “once-off” amount for damages. Accordingly, the Orders made by the Magistrate were in
breach of the once-and-for-all rule.
Provan v HCL Real Estate (1992) 24 ATR 238; 9 BPR 16,895, applied.
9.
A person who claims a loss must take all reasonable steps to mitigate the loss consequent
upon the defendant’s wrong and will not be entitled to recover an amount for damages for any
such loss which he, she or it could have avoided, but has failed to avoid through their own
unreasonable action or inaction. While there was no positive duty in this case, it would have been
inconceivable to think – at least in the absence of any strong evidence to the contrary – that
requiring a business to claim input tax credits to which it was properly entitled could be considered
an unreasonable imposition. To the contrary, it would be entirely inappropriate for a Court to
sanction the action, or inaction, of a plaintiff who wished to avoid what would most likely amount
to a simple task of completing paperwork with which it would be highly familiar and would
complete on a regular basis and then oblige a defendant to meet expenses of the plaintiff which it
has incurred or not recouped due to its own unreasonable behaviour.
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10.
Accordingly, the correct application of the law relating to the mitigation of loss in this case
required that the award of damages be reduced to the extent that WW. had not acted reasonably
in claiming the input tax credits to which it was entitled. On this basis, the third ground in the
Notice of Appeal was made out.
Sentencing – lesser non-parole period imposed by Court
In Mackay v The Queen MC 18/2015, the Court of Appeal was required to consider an appeal
against a sentence of imprisonment of two years’ with a non-parole period of one year. The
sentence was imposed whereby the accused received a lesser non-parole period. HELD:
HELD: Appeal allowed. M. sentenced to nine months' imprisonment and a Community Corrections
Order ('CCO') of three years imposed commencing on his release from imprisonment.
1.
Section 5(4C) of the Sentencing Act 1991 ('Act') provides that a court must not impose a
sentence that involves the confinement of the offender unless it considers that the purpose or
purposes for which the sentence is imposed cannot be achieved by a community correction order
to which one or more of the conditions referred to in ss48F, 48G, 48H, 48I and 48J are attached.
2.
The guideline judgment in Boulton v The Queen [2014] VSCA 342 explains the wide
potential application of CCOs. The guidelines annexed to the judgment indicate that in every case
the Court should consider: whether the crime in question is so serious that nothing short of a
sentence wholly comprised of an immediate term of imprisonment will suffice to satisfy the
requirements of just punishment; and whether a CCO, either alone or in conjunction with a
sentence of imprisonment (which cannot exceed two years), would satisfy the requirements of just
punishment. The Court emphasised in Boulton that CCOs are punitive, although obviously not as
punitive as imprisonment, and observed that the new legislative regime would require courts to
re-examine the type of offending that attracts imprisonment.
3.
If consideration was confined to the Judge's sentencing reasons, there was an apparent
failure to address the issue of a CCO which, in the circumstances of this case, s5(4C) of the Act
and the decision in Boulton required. The transcript revealed that a CCO was considered but it
also revealed that in that consideration the sentencing judge had regard to his assessment of the
likelihood of the applicant obtaining parole. This was a consideration which was expressly
precluded by the provisions of s5(2AA) of the Act.
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4.
M. was re-sentenced to a term of imprisonment of nine months and a CCO of three years
imposed commencing upon release, with conditions requiring assessment and treatment for drug
abuse and dependency and for supervision, monitoring and management by the Secretary of the
Department of Justice, in addition to the conditions imposed by s45 of the Act.
Civil proceedings - Discovery obligations discussed in detail
In North West Supermarkets Pty Ltd v The Leasing Centre (Aust) Pty Ltd MC 19/2015, an order was
made against a party where the issue of discovery of documents was considered. On appeal, the
question of discovery in civil proceedings was discussed in detail.
HELD: Application dismissed.
1.
It was not necessary to produce the ASIC documents for NW to demonstrate that the giving
of notice by TLC would have reduced the prospect of NW omitting to give the notice required by
the Notice Requirements. The case was determined on the basis that it was for NW to protect its
own interests and described the matter as ‘simply a case of the plaintiff failing to protect its
interests’. It was further submitted that the ASIC documents indicated no finding of wrongdoing
by TLC in not issuing notices.
2.
The full terms of r29.01.1 of the Magistrates' Court General Civil Procedure Rules 2010,
prescribe the ambit of a party’s responsibility in giving discovery. In this case, the rule relevantly
required TLC to discover documents which it was, after a reasonable search, aware adversely
affected its own case, or supported NW's case.
3.
The ASIC documents did not support NW's case in the Magistrates’ Court proceeding as
pleaded or adversely affect TLC's case as pleaded. NW were required to particularise the facts and
circumstances in which it relied to establish the statutory concept of unconscionability.
4.
If NW had specifically pleaded for example that TLC had knowledge that Clause 23 was not
likely to be read or understood by a renter, or that Clause 23 was part of a deliberate system to
take advantage of renters, a person in the position of TLC would have had a reasonable opportunity
to identify documents relating to prior complaints as material. However, NW's pleadings at first
instance did not descend to that level of particularity. Counsel for NW submitted that a deficiency
in the pleadings may be more readily excused in the Magistrates’ Court. Whether or not that may
be the case, a party putting forward deficient pleadings is in a difficult position if it then wishes to
complain that the other party has failed to appreciate issues, which the first party considers
material, in the giving of discovery.
5.
The fact that, at the time of the giving of discovery, there had been approximately seven
complaints about the Notice Requirements over 11 years could not have indicated to TLC that
prior complaints were material to NW's claim in the absence of an appropriate particular. The fact
that such material may have assisted NW in cross-examining as to similar conduct or credibility
was not sufficient to make the documents discoverable.
6.
In respect of the issue of non-compliance with its discovery obligations, if there was any
non-compliance by TLC, it was minor. Further, TLC's intentions were to carry out their discovery
obligations carefully and to comply generally.
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7.
The lack of particularity in the pleading made it difficult for NW to then complain about
the failure to obtain the ASIC documents on discovery. If NW wished to focus its unconscionability
claim on the fact that other customers of TLC were likely to have been misled, it had opportunities
with reasonable diligence to ascertain the existence of prior complaints. Accordingly, there was no
real prospect that such a change of focus would have resulted in a different outcome before the
Chief Magistrate.
Speeding charge – adequacy of reasons in finding charge proved
In Agar v Petrov MC 20/2015 the defendant pleaded not guilty to a speeding charge and gave
evidence that he did not exceed the speed limit. In accepting the certificate produced to the court,
the judge found the charge proved saying that there was no evidence to the contrary. Upon appeal.
HELD: Appeal upheld. The judge's order set aside. Remitted to the County Court for rehearing
before another judge.
1.
Where the County Court was deciding by way of hearing de novo a summary prosecution,
the obligation to provide adequate reasons extended to identifying the grounds or basis of decision
in the same way as such an obligation is regarded as a necessary corollary to a right of appeal on
questions of law. The reasons needed to explain the process of reasoning of the County Court
judge and to state the grounds of the decision sufficiently to enable the court to see whether the
judge’s decision did or did not involve an error of law.
2.
Putting to one side the question of weight, there was no doubt that there was evidence
before the judge which was to the opposite effect of the matters set out in the s83A certificate. A.
gave direct evidence that contrary to what was recorded in the certificate, his speed was 60kmh
at the time he was recorded as driving at 67kmh.
3.
It was not put directly to A. that his recollection of his speed at the time he was recorded
as exceeding the speed limit was flawed, that his speedometer or cruise control was or may have
been faulty, or that he was being deliberately dishonest. In circumstances where the Judge gave
no reasons for rejecting the evidence of A., it was difficult to understand the basis upon which the
judge may have concluded that the evidence was of no weight.
4.
Given that there was no challenge to A.'s credit, it was encumbent upon the judge to
articulate the basis for any conclusion which he reached that A.'s evidence was to be given no
weight.
5.
The s83A certificate constituted prima facie proof that A. was travelling at 67kmh. Together
with s81 — and in the absence of evidence to the contrary — it was proof that A.'s vehicle was
travelling in excess of the prescribed speed limit. Upon remittal, if A. gave evidence to the same or
similar effect to that which he gave before the judge, the trial judge will have to determine whether
that evidence was ‘evidence to the contrary’ for the purposes of ss81 and 83A of the Act.
6.
If the judge concluded that the evidence of A. was of no weight then it was not ‘evidence to
the contrary’. In the absence of other evidence the charge will be proved on the basis of the s83A
certificate. If the judge was satisfied that the evidence was of some weight, it did not follow that
the court could not find the charge proved beyond reasonable doubt on the basis of the s83A
certificate. Rather, the court would have to weigh any evidence advanced by A. against the
evidentiary weight to be attached to the s83A certificate.
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7.
Once the s83A certificate was admitted into evidence, it was evidence of the matters
contained therein. Evidence which was to the ‘opposite effect’ of the matters contained in the
certificate, did not preclude a court from convicting on the basis of the s83A certificate. Whether
or not a court does so depends upon the judge’s assessment of the quality of the evidence which
was put forward as being contrary to the evidence constituted by the s83A certificate.
Bail application – whether accused represented an unacceptable risk
In Re Guirguis MC 21/2015, an accused charged with nine offences in relation to a female victim
sought bail.
HELD: Appeal granted. Bail granted subject to certain conditions.
1.
Since s4(2)(d)(i) of the Bail Act 1977 ('Act') provides that a court shall refuse bail if satisfied
that there is an unacceptable risk that an accused would, if released on bail, do any of the things
spelled out in the subsection, it is plain that any burden of persuasion as to unacceptable risk
cannot lie with the applicant for bail. He is not required to show an absence of unacceptable risk.
2.
That position may be contrasted with the situation that obtains under s4(4)(b) of the Act,
where a burden of persuasion is placed on the applicant for bail. If the applicant for bail is charged
with stalking, and the court is satisfied that the applicant has previously used or threatened
violence against the person stalked, the court shall refuse bail unless the accused shows cause
why his detention in custody is not justified.
3.
The mere fact that a person is charged with stalking (and has previously used or threatened
violence), however, does not necessarily carry with it the concomitant that he poses an
‘unacceptable risk’ within the meaning of s4(2)(d)(i). Whether or not he does so requires an
evaluation of the putative risk or risks, consistently with the requirements of s4(3) of the Act.
4.
Any grant of bail must carry some risk. Subsection 4(2)(d)(i) of the Act contemplates that
there are some risks which are acceptable; and that, in certain situations, what might initially be
deemed to be an unacceptable risk may be rendered acceptable by, for example, the imposition of
strict conditions of bail.
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5.
The applicant did not pose an unacceptable risk in the manner posited by the respondent.
Any risk may have been adequately controlled by conditions of bail. Given that was so, having
regard to the applicant’s personal circumstances (including his family supports), his employment
prospects and his prior history, and taking into account the nature and limited strength of the
prosecution case, insofar as the applicant might have been required to show cause why his
detention in custody was not justified, he had done so.
Sentencing – co-offences – parity explained
In Collins v The Queen MC 22/2015, parity of sentencing was considered by the court of Appeal
where an accused person was sentenced to a longer sentence than a co-accused.
HELD: Appeal against sentence dismissed.
1.
The principles governing parity are well-established. Equal justice requires that like
offences be treated alike, but also that relevant differences between offenders be capable of being
treated as justifying different outcomes. If there is a ‘marked’ or ‘manifest’ disparity between
sentences which gives rise to a justifiable sense of grievance on an appellant’s part, then the
principle of parity may be said to have been infringed. However, no justifiable sense of grievance
can be said to arise where it was reasonably open to the sentencing judge to differentiate between
co-offenders in the way in which he or she did. When an appellate court considers whether it was
open to the sentencing judge to differentiate, or not differentiate, in the way he or she did, the
approach is relevantly analogous to that which arises where it is said that a sentence is manifestly
excessive.
2.
The reasons given by the judge in sentencing showed that the issue of parity was
considered.
3.
The question then became whether the difference in the sentences imposed justified a
different sentence being imposed upon the appellant.
4.
There were matters that justified a more lenient sentence being imposed on the co-accused.
First, the appellant’s prior convictions were more significant than the co-accused's prior
convictions. Secondly, the co-accused indicated a willingness to plead guilty at an earlier stage
than the appellant did. Thirdly, it was the co-accused who gave a statement and offered to give
evidence against co-offenders, and he did in fact give evidence against the appellant at a contested
committal hearing. The appellant was not able to call any of these mitigating factors into account
when he was sentenced.
5.
Having regard to the fact that the co-accused was younger, had a less significant criminal
history than the appellant, offered to plead guilty at an earlier stage than the appellant, and offered
to give evidence against co-offenders, the appellant has no justifiable sense of grievance in relation
to the sentence that was imposed upon him when it was compared with the sentence earlier
imposed upon the co-accused. Also, on the question of delay, the co-accused chose to plead guilty
at an earlier stage in his proceeding than did the appellant.
23
6.
Accordingly, there was no error in the way the judge dealt with the parity question, nor in
the sentence imposed on the appellant.
Sentencing in respect of Federal offences - whether Boulton v The Queen [2014] VSCA 342
applies.
In Atanackovic v The Queen MC 23/2015, the Court of Appeal had to consider whether the
guideline judgment in Boulton v The Queen was applicable for a federal offence.
Held:
114. For the above reasons, neither s16A of the Crimes Act 1914 (Cth) nor s80 of the Judiciary
Act provides a legal foundation for the application of the guideline judgment to the sentencing of
federal offenders.
115. The above discussion indicates that, if the guideline judgment were applicable to the
sentencing of federal offenders in Victoria, there is potential for many such offenders to be the
subject of a CCO rather than being imprisoned and thus for significant inconsistencies to arise
between Victoria and other jurisdictions in relation to the nature of the punishment that is
imposed on such offenders. None of the cases that deal with the desirability of reasonable national
consistency and comity in the sentencing of federal offenders have held that a sentencing principle
that has been adopted in a particular jurisdiction cannot be applied to the sentencing of such
offenders if such application would result in disparity in sentencing between that and other
jurisdictions. Accordingly, we have not relied on the potential for inconsistency that the application
of the guideline judgment would create if it were applied to the sentencing of federal offenders as
a basis for supporting our conclusion that the guideline judgment does not apply to the sentencing
of federal offenders in Victoria.
116. This conclusion clearly has the benefit of lessening the potential disparity in the sentencing
of federal offenders. However, it must be acknowledged that, where a sentencing court is giving
consideration to imposing a CCO on an offender who is convicted of a Victorian offence and a
federal offence, it may be seen as anomalous that the guideline judgment can be taken into
account in respect of the Victorian offence but not in respect of the federal offence.
24
117. It follows from the above that, in considering the questions whether a different sentence
should be imposed on the appellant, and, if so, what that sentence should be, this Court must not
apply the guideline judgment in Boulton.
Procedure – certain documents not provided to accused at time of arrest
In Guss v Magistrates’ Court of Victoria and Commissioner of Taxation MC 24/2015, the accused
was not provided with certain documents when arrested. On the hearing of the charges, the
accused submitted that there had been a breach of the Criminal Procedure Act 2009 and the
charges should be dismissed. The Magistrate found the charges proved. Upon appealHELD: Application for review of the Magistrate's order dismissed.
1.
G.'s submissions were misconceived in that they amounted, in substance, to no more than
a conclusory assertion that the provisions of s13 of the Act were mandatory. The underlying
purpose of s13 of the Act is to ensure procedural fairness.
2.
A warrant ensures that an accused attends the court, and the purpose of requiring the
specified material to be provided is to ensure that an accused is accorded sufficient procedural
fairness. In the present case, the Magistrate found as a fact that G. suffered no prejudice in terms
of his preparation for a hearing into the charges. There was no challenge to that finding of fact. As
was discussed during the hearing on appeal, it was possible that in other cases an accused will
not have the sophistication or resourcefulness of G. and that a failure to comply with the
requirements of s13 of the Act will have a more detrimental effect. However, even in such a case,
the Court would not be deprived of jurisdiction or power to hear and determine the relevant
charges. The Court would be required to do what it could by way of adjournment or exclusion of
evidence or otherwise to ensure a fair hearing and determination of the charges.
3.
Critically, G.'s submissions failed to recognise that the Act relates to and governs procedure
in all criminal proceedings in Victoria. It is not confined to summary matters or to indictable
matters that may be heard and determined summarily. The consequences of accepting G.'s
argument would be potentially disastrous. It would mean that any non-trivial slip on the part of
the authorities at the time of service of a summons or execution of a first instance warrant to
arrest would deprive the State of the capacity to prosecute the accused, regardless of the
seriousness of the offence. For example, that would be the situation with respect to a murder
charge or a very serious drug trafficking charge. To reiterate, G.'s argument was that in every case
it will be too late to cure any non-trivial breach of s13. The argument is completely unacceptable.
4.
Courts today are less patient with meritless technicalities. They recognise the
inconvenience that can attend an overly strict requirement of conformity to procedural
preconditions. In the morass of modern legislation, it is easy enough, even for skilled and diligent
legal practitioners (still more lay persons who must conform to the law) to slip in complying with
statutory requirements. Thus, a flexible approach to statutory preconditions is to be encouraged.
25
5.
Accordingly, G.'s challenges to the Magistrate's decision failed.
Civil proceedings – whether person liable for credit card claim – whether fair trial
In McGuinness v ACM Group Ltd MC 25/2015, a bank claimed money from a person who held a
credit card along with one held by her husband. The Magistrate upheld the claim. Upon appeal –
HELD: Appeal allowed. Claim dismissed.
1.
The essential finding that McG. entered into the Credit Card contract was not open to the
Magistrate. There was no direct evidence as to who applied for the Credit Card or entered into the
Credit Card contract. On the evidence there were no facts from which the Magistrate could infer
that it was McG., rather than her husband, who applied for the Credit Card and entered into the
Credit Card contract. The only evidence available as to whether it was McG. or her former husband
who entered into the Credit Card contract was McG's evidence that, in substance, to the best of
her recollection she did not apply for the Credit Card and at the relevant time it was her husband
who took responsibility for their financial affairs. Accordingly, the finding of liability against McG.
was based on a finding that she entered into the Credit Card contract which, on the evidence, was
not open to the Magistrate.
2.
The fact that the critical document in this claim was the Credit Card contract which had
been in the possession of the NAB who later ultimately assigned the debt to the respondent ACM
Group. It was this document that McG. expressly requested to see but the respondent was unable
to produce because, as Mr Zhao explained, the NAB has a policy of only ‘keeping documentation
for a certain period of time’.
3.
In the circumstances, where the critical document in issue had been destroyed by the NAB,
those provisions should have been brought to the attention of the Magistrate. Whilst the failure to
do so was solely the result of an oversight, the application of these provisions would have presented
a further substantial obstacle to the success of the respondent’s claim.
4.
The presumption of regularity could not have been applied in these circumstances,
particularly when a very favourable inference was sought to be drawn by reason of the
respondent’s failure to produce the Schedule.
5.
The presumption of continuance could not have been applied with respect to a matter as
volatile as bank interest rates, particularly over a period of nearly six years in the absence of any
evidence being called by the party carrying the burden of proof.
6.
Accordingly, the Magistrate erred in allowing the respondent the amount of $42,419.75 for
interest and late fees on the amount of the debt from December 2007 to August 2013.
7.
It was submitted that the Magistrate interrupted and cross-examined McG. during her
examination in chief. Counsel referred to the fact that, after the Magistrate led McG. through the
early part of the evidence, the examination in chief proceeded with the Magistrate asking the
questions and the appellant responding.
8.
The overriding duty on every judge in every trial, whether civil or criminal, is to ensure that
the trial is conducted fairly. With respect to self-represented litigants, the obligation on the judge
is to give such assistance as is necessary to ensure a fair trial. The proper scope of the assistance
depends on the particular litigant and the nature of the case. The touchstones are fairness and
balance. The assistance may extend to issues concerning substantive legal rights as well as to
issues concerning the procedure that will be followed.
9.
From the very start of the case, McG. put in issue whether she ever had applied for the
Credit Card and said that she had no recollection of doing so. Accordingly, the central issue in the
case was whether McG. had applied for the Credit Card or otherwise entered into the Credit Card
contract. A subsidiary issue was necessarily, if McG. did enter into the Credit Card contract, what
were the applicable terms and conditions.
10.
The leading questions asked only had the effect of obscuring whether the evidence was
able to establish those critical issues. Contrary to the requirements of fairness to the selfrepresented litigant and s37 of the Evidence Act, the leading questions should not have been asked
in this form and the Magistrate should not have allowed the witnesses to answer the questions
put in this form nor have admitted the evidence which was inadmissible.
11.
In summary, it was not open to the Magistrate to find that McG. had entered into the Credit
Card contract, to find that the Conditions were the applicable terms of the Credit Card contract,
to find that the amounts claimed by way of interest and other charges from 25 December 2007 to
August 2013 were payable under the Credit Card contract.
26
12.
The Magistrate, by allowing leading questions and admitting inadmissible evidence on
critical issues, failed to ensure a fair trial for the appellant as a self-represented litigant.
Traffic offence – camera evidence – whether defendant entitled to access camera manual
and service records
In Cai v The County Court of Victoria and Ors MC 26/2015, the defendant was found guilty by a
Magistrate of a charge of entering an intersection against a red traffic arrow. The defendant
appealed the decision and prior to that hearing, issued subpoenas seeking production of the
camera records and the camera manual. The judge set aside the subpoenas. Upon appeal –
HELD: Appeal upheld in relation to the order which set aside the subpoena relating to the manual.
1.
The principles governing the validity of a subpoena are that the applicant must identify a
legitimate forensic purpose for which access is sought, and establish that it is ‘on the cards’ that
the documents will materially assist his case. There will be no legitimate purpose if ‘all the party
is doing is trying to get hold of the documents to see whether they may assist him in his case’.
Shaw v Yarranova Pty Ltd [2011] VSCA 55 (per Redlich and Mandie JJA), applied.
2.
In relation to the service records subpoena, C. produced no evidence nor provided any
basis before the judge to suggest that the service records might have materially assisted his
defence. He speculated that they might. That speculation did not provide a legitimate forensic
purpose for the production of the documents. Accordingly, no error of law or jurisdictional error
appeared in the judge's decision to set aside the two records subpoenas.
3.
In relation to the technical manual subpoena, different issues were raised. C. wanted to
use the manual to seek legal and expert advice before the hearing of the appeal. C. explained to
the Judge that in order to present his defence he needed to know when the sensors commenced
to operate; whether it was when the front of his vehicle touched the stop line or whether some
other part of his vehicle, such as the back of the vehicle, could activate the camera and timer or
clock. These matters were relevant to when the camera and the annotation on the photograph
identified his vehicle as having entered the intersection.
4.
C. established that the judge made an error of law on the face of the record by setting aside
the manual subpoena. C. had stated a legitimate forensic purpose to justify production of the
manual. The only issue in the proceeding was whether his vehicle entered the intersection against
the red arrow. The informant relied on the certificate under s83A of the Road Safety Act 1986,
with its photographs and annotation of when C.'s vehicle entered the intersection. C. was entitled
to produce evidence to the contrary. C. wanted to establish the point at which the photograph, the
camera and the time clock treated his vehicle as having first entered the intersection, in order to
challenge the 2.2 second time elapse annotation contained on the photograph.
5.
The County Court Judge did not identify or consider the basis on which C. argued that he
had a legitimate forensic purpose for issuing the manual subpoena. There was no definite proof
that the contents of the manual would assist his case, but although a mere “fishing” expedition
can never be allowed, it may be enough that it appears to be “on the cards” that the documents
will materially assist the defence.
27
6.
The Judge applied the applicable legal principle of legitimate forensic purpose but did not
address the relevant questions and issues raised by C.'s statement of his purpose for issuing the
manual subpoena and accordingly, made an error of law.
Theft – whether accused had an intention to permanently deprive customers
In DPP v Brownlie and Brownlie MC 27/2015, the two accused were charged with several counts
of theft. They had operated a jewellery shop and during the course of their trading, took watches
and items of jewellery which required repairs to pawnbroker’s business for loans of cash. The trial
judge granted an application for a permanent stay of the charges. Upon appealHELD: Appeal allowed. The order for a permanent stay of the charges set aside.
1.
The elements of the crime of theft are found in s72 of the Crimes Act 1958 ('Act'), so that a
person steals if he or she ‘dishonestly appropriates property belonging to another with the
intention of permanently depriving the other of it’. Thus, the elements of theft are dishonesty;
appropriation; of property belonging to another; and an intent to permanently deprive.
2.
Giving the language of s73(13) of the Act its plain meaning, if a person having possession
and control of another’s property, parts with it on a condition as to its return which he may not
be able to perform, then that amounts to treating the property as his own to dispose of (so long as
when he or she parted with the property that was done for his or her own purposes, and when he
or she parted with the property on condition that was done without the owner’s authority to do
so).
3.
For there to be an appropriation, a person does not have to assume all of the rights of the
owner of property. It is sufficient for there to be an appropriation if a person assumes any of the
rights of a true owner.
4.
The accused adopted the rights of the owners of the property by providing the property to
third party lenders as security for loans. By doing so, the accused were advanced cash. It mattered
little that the accused may have had a fervent hope that they would be able to redeem the property,
or that they had previously been successful in paying interest due on the loans. The fact remained
that they parted with the property left in their custody on conditions as to its return which they
may not have been able to perform. That amounted to treating the property as their own to dispose
of.
5.
The effect of ss73(12) and 73(13) is tolerably clear. Subsection (12) provides that, if a person
appropriates property belonging to another — without meaning the other permanently to lose the
thing itself — the person is nevertheless to be regarded as having the intention to permanently
deprive, if his intention is to treat the thing as his own to dispose of regardless of the other’s rights.
And subsection 73(13) provides that a person is to be regarded as treating the property as his own
to dispose of regardless of the owner’s rights in circumstances where he parts with the property
under a condition as to its return which he may not be able to perform (if done for purposes of his
own and without the owner’s authority).
28
6.
Thus there was evidence available in the prosecution case capable of satisfying the element
of intention to permanently deprive, in the way that element was to be understood in light of
ss73(12) and 73(13). Accordingly, it followed that the prosecution’s case was not, in the way that
the judge thought it was, foredoomed to fail.
Sentencing – judge appeared to sentence accused on basis that he would be granted parole
at or shortly after the expiration of his non-parole period
In Manariti v The Queen MC 28/2015, the accused was sentenced to a period of imprisonment on
the basis that he would be granted parole at or shortly after the expiration of his non-parole period.
Upon appeal
HELD: Application for leave to appeal granted and appeal allowed. M. sentenced to 14 months'
imprisonment with no non-parole period coupled with a six-year Community Correction Order
with conditions.
1.
There was no substance in M's complaint about the judge’s conclusion with respect to
principles 1–4 of Verdins. The judge was right to conclude that M's moral culpability was greater
than the moral culpability of someone who might have had symptoms about which they had no
idea because they had never been diagnosed with any condition. Further, that conclusion entitled
the judge to moderate the extent to which effect should be given to principles 1–4 of Verdins.
R v Verdins [2007] VSCA 102; (2007) 16 VR 276; (2007) 169 A Crim R 581, considered.
2.
Having regard to the objective seriousness of M's offending and his previous criminal
history, and noting that the present offending occurred during the currency of the suspended term
of imprisonment imposed in 2011, and whilst M. was subject to a community based order then
imposed, the Court was unable to say that the sentence imposed by the judge was wholly outside
the permissible range.
3.
The Judge appeared to sentence M. on the basis that he would be granted parole at, or
shortly after, the expiration of his non-parole period. Such a sentence breached s5(2AA) of the
Sentencing Act 1991. That error necessarily impacted upon the judge's consideration both of the
parsimony principle and s5(4C) of the Act. In order to decide whether, to satisfy the purposes for
which sentence was to be imposed, it would be sufficient to impose a period of confinement of up
to two years, and thereafter a community correction order for some period of time, it was a false
comparison to contemplate imposition of a sentence of three years and ten months’ imprisonment
with a non-parole period of 16 months’ imprisonment on the assumption that M. would be at large
(though under supervision) for two and a half years of the three years and ten months sentence.
29
4.
Accordingly, M. was sentenced to a term of imprisonment of 14 months with no non-parole
period coupled with a six-year community correction order containing the conditions referred to
in s45 of the Sentencing Act 1991 together with treatment, supervision, monitoring and
management conditions in accordance with ss48D and 48E of that Act.
Local Government – Public Health – nuisance caused – improvement notices issued
In Hallett & Anor v City of Port Phillip MC 29/2015, improvement notices had been issued as a
result of a nuisance having been caused by noise. The tenants had left the premises but the
Magistrate failed to take that fact into account when affirming the improvement notices.
HELD: Application for review of the Magistrate's order upheld.
1.
The nature of the appeal created by s208 of the Public Health and Wellbeing Act 2008 ('Act')
was apparent from the power given to the Court to receive evidence tendered by the parties about
the Council’s decision to issue the improvement notices. This was a case where the nature of the
procedures involved in the Council’s decision led to the conclusion that the Magistrates’ Court
was not to be confined to the material that was before the Council. There was no indication of a
temporal limitation affecting the evidence that may have been relevant to the Court’s
reconsideration of the decision to issue the improvement notices.
2.
The s208 appeal required a de novo reconsideration of the Council’s decision to issue the
improvement notices. The effect of s208 was that the relevant evidence that could be tendered
included events occurring since the improvement notices were issued. The order of VCAT, giving
possession of the property to JP/L, was an example of such relevant evidence. Accordingly, the
Magistrate erred in his interpretation of s208 and the nature of the appeal that it created.
3.
The Council had not proved that it complied with the requirements for valid service
permitted by s221 of the Act.
4.
In relation to the question whether the Council gave H. and JP/L a fair opportunity to be
heard in relation to the allegations, the Magistrate found that the Act did not oblige the Council to
inform a resident of complaints regarding a nuisance. The Magistrate erred in law on this issue
and the principles of justice were not excluded by the terms of the Act. There was no apparent
reason why the Council, in the course of its lengthy investigation, did not attempt to speak with
H. and tell him of the nuisance complaint and give him an opportunity to respond before the
notices were issued. All of that would have been a perfectly sensible investigatory practice. It was
possible that it may have ended the nuisance without the need for further action. The Council had
previously spoken to H. about other matters.
5. Accordingly, the Magistrate erred in finding that there was no obligation to inform H. and JP/L
of the allegations against them and give them an opportunity to respond before the improvement
notices were issued.
6.
H. and JP/L's appeal was competent. They established that the Magistrate erred in law by
finding that the Act did not oblige the Council to inform them of the nuisance allegations and give
them an opportunity to respond to them before issuing the improvement notices. The Magistrate
also erred in deciding that the appeal created by s208 did not entitle the Magistrates’ Court to
take into account matters occurring after the issue of the improvement notices, such as the VCAT
orders.
30
Self-represented litigant – procedural fairness
In Waddington v Kha MC 30/2015, Magistrate refuses to hear submissions and repeatedly
intervened in the litigant’s cross-examination and ultimately dismissed the litigant’s proceeding.
HELD: Appeal allowed. Magistrate's order set aside and remitted to the Magistrates' Court for rehearing.
1.
In relation to the unsuccessful application for the adjournment, W. failed to demonstrate
an error of law on the part of the Magistrate in refusing an adjournment. The decision to grant an
adjournment is discretionary. While the discretion must be exercised judicially, appellate courts
are notoriously reluctant to interfere with the exercise of a discretion, especially with respect to
procedural matters. While the timing of the hearing was probably unfortunate given the short
period of time between the decision of Lansdowne AsJ and the hearing date, it was difficult to see
how the Magistrate’s discretion had miscarried. The hearing had been fixed for some time, and W.
was aware of the fixture. Time had been blocked out of the court schedule, although apparently
not enough. W. only requested an adjournment the day before the hearing. The evidence was that
K. lived in Sydney, and had no doubt made travel arrangements which would be hard to alter at
late notice. Based upon the principles in AON Risk Services Pty Ltd v Australian National University,
the Magistrate had solid grounds for refusing an adjournment.
AON Risk Services Pty Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR
175; (2009) 258 ALR 14; (2009) 83 ALJR 951, applied.
2.
In relation to the question whether the Magistrate afforded W. procedural fairness in the
way the case was conducted, W. was, by reason of the manner in which the trial was conducted,
denied a fair and reasonable opportunity to present his case, and to some extent, this unfairness
stemmed from the failure of the Magistrate to clearly identify the issues in the dispute at the
commencement of the trial.
3.
The Magistrate repeatedly intervened in W.'s cross-examination of K., ruling as irrelevant
questions which clearly went to K.'s role at the premises, and in particular, whether he was a
rooming house owner within the meaning of the RTA. Further, at the resumed hearing, the
Magistrate did not allow W. to reopen his case or inspect subpoenaed documents until after the
cross-examination of K. was concluded, notwithstanding that the additional evidence and the
contents of the subpoenaed documents were matters which could have properly been put to K.
4.
Whilst each of these instances, of themselves, were probably insufficient to lead to a finding
that there was a denial of procedural fairness, however, taken together, the cumulative effect of
various aspects of the conduct of the trial, along with the apparent irritation displayed by the
Magistrate regarding W.'s conduct of the case, was that W. was denied the opportunity to properly
present his case.
5.
The persistent interruptions of the Magistrate, couched in terms of avoiding irrelevant
matters and in the interests of saving time did in fact prevent W. from adducing evidence and
making submissions regarding matters of some relevance to the issues in the proceeding, and in
particular, whether K. was a rooming house owner within the meaning of the RTA.
6.
W. was respectful in court and showed no signs of shearing off into irrelevant matters in
his submissions. His demeanour was not of a nature which caused undue difficulty in the
management of a court room, and he exhibited sufficient intelligence and communication skills to
suggest that if given a relatively minimal level of guidance and some leeway he would have been
capable of competently presenting his case. However, while it was apparent that W. understood
the issues in this case, he was not given an adequate opportunity to articulate these at trial, and
any requests he made for guidance and assistance were refused.
7.
Every Magistrate has a duty to ensure a fair trial, and, in many cases involving selfrepresented litigants, this may involve the provision of assistance by the Magistrate to the selfrepresented litigant, including assistance regarding issues concerning substantive legal rights as
well as procedural matters, provided that the assistance is proportionate and does not compromise
the reality and appearance of judicial neutrality.
Tomasevic v Travaglini [2007] VSC 337; (2007) 17 VR 100 [139] to [142], applied.
8.
In relation to the reasons given by the Magistrate, the reasons demonstrated a lack of
clarity regarding the real issues in dispute in the proceeding. In particular, the reasons proceeded
on the basis that W.'s case was that K. or his agents converted W.'s goods for their own advantage.
The reasons completely failed to address the evidence of W. and another witness regarding K.'s
role at the premises, and whether or not that evidence had established that K. was a rooming
house owner within the meaning of the RTA. While one should not impose an undue burden upon
31
judicial officers in busy courts to prepare extensive written reasons in all cases, the reasons given
meant that W. simply did not know why he lost.
Judicial discretion to admit or exclude evidence
In Police v Dunstall MC 31/2015, the High Court was asked to consider an appeal against a
dismissal of a drink/driving charge by a Magistrate.
HELD: Appeal allowed. The Magistrate's dismissal of the charge set aside and remitted to the
Magistrates' Court for further hearing.
1.
The exclusion of evidence in a criminal proceeding in the exercise of a "fairness discretion"
is generally understood to refer to the principles explained in R v Lee [1950] HCA 25; (1950) 82
CLR 133 ("the Lee discretion"). The Lee discretion forms part of the special body of rules applying
to the admission of confessional statements. In criminal proceedings, there are two settled bases
for the discretionary exclusion of non-confessional evidence, including "real" and circumstantial
evidence. The first is where the probative value of the evidence is outweighed by the risk of
prejudice to the defendant ("the R v Christie [1914] AC 545 discretion"). The second is where the
evidence has been tainted by illegality or impropriety on the part of the law enforcement authority
("the Bunning v Cross [1978] HCA 22; (1978) 141 CLR 54 discretion"). The rationale for the latter
discretion is not so much a concern with fairness to the defendant as with the public policy of not
giving the appearance of curial approval to wrongdoing on the part of those whose duty is to
enforce the law. These three discretions correspond with the exclusionary discretions that apply
in criminal proceedings under the Uniform Evidence Acts. In addition to these bases for
discretionary exclusion of evidence in criminal proceedings, intermediate appellate courts in other
Australian jurisdictions have also identified a residual common law discretion to exclude
admissible evidence on the ground of unfairness.
2.
In relation to the legislative scheme, the Parliament had chosen to provide the prosecution
with an aid to proof and to closely confine the circumstances in which rebuttal evidence may be
adduced. There was no suggestion that the scheme was beyond power. The prosecution proved
the commission of the offence by proof that D. submitted to breath analysis by means of a breath
analysing instrument within two hours of driving a motor vehicle and that the breath analysis
reading indicated the presence of the prescribed concentration of alcohol in his blood. The category
of the offence was established by proof of the breath analysis reading. Subject to the defence
adducing opinion evidence based upon analysis of a blood sample taken and dealt with in
accordance with the prescribed procedures, the reliability of the breath analysis reading was not
an issue in the trial.
3.
The medical practitioner acted on D.'s request and was in no sense an agent of the law
enforcement authorities responsible for the prosecution. Any failure by the medical practitioner to
comply with the prescribed procedures did not engage the public policy considerations that
informed the Bunning v Cross discretion.
4.
The work done by the Road Traffic Act (1961) (SA) ('Act') was to permit the prosecution to
rely on the presumption notwithstanding the possible failure to comply with the Act, subject
always to the defendant proving the matters specified in the Act. Admission of the evidence of the
breath analysis reading did not make D.'s trial unfair. This conclusion and the circumstance that
neither party contested the existence of the "general unfairness discretion" made it inappropriate
to determine the scope, if any, of a residual discretion to exclude lawfully obtained, probative, nonconfessional evidence that is unaffected by impropriety or risk of prejudice on the ground that
admission of the evidence would render the trial of the defendant an unfair trial.
32
5.
It remained to observe that the power of the court to prevent unfairness arising from the
continuation of criminal proceedings that are oppressive or unjust involves a test of fairness that
requires the court to balance the interests of the defendant and those of the community. Where
the evidence that was sought to be excluded was critical to the prosecution case and the basis of
exclusion was said to be that admission of the evidence would render the trial unfair, the remedy
lay in determining whether the circumstances justified a permanent stay and not in circumventing
that inquiry by the exclusion of the evidence in the exercise of a "general unfairness discretion".
Speeding charge – Certificates tendered – evidence given
In Agar v McCabe and Anor MC 32/2015, the defendant appealed against a Magistrate’s decision
finding a speeding charge proved. Upon appealHELD: Application for review dismissed.
1.
Two separate elements must be made out to establish evidence to the contrary, with the
first element being that there is evidence to the opposite effect of the matters set out in s83A of
the RSA, and the second element being that the tribunal of fact accepts that such evidence has
some weight.
2.
The combined effect of ss81 and 83A(1)(b) is that, absent evidence to the contrary, the s83
certificate is proof of the speeding charge. Given A.'s evidence on matters under cross-examination,
there was a basis for the Magistrate to reject A.'s evidence about the speed he was travelling and
to conclude that it was not of sufficient weight to displace the prima facie evidence before the court
by the tendering of the ss83 and 83A certificates.
3.
The Magistrate weighed A.'s evidence against the evidentiary weight to be attached to the
s83A certificate and was in the unique position to assess A.'s evidence, as to content, credit and
demeanour. It was open to the Magistrate to find on the facts that A.'s evidence was not sufficient
and that there was no objective marker by which A.'s evidence could be measured.
4.
In relation to the allegation that the Magistrate's reasons were not adequate, where reasons
are necessary, it is sufficient for a Magistrate to apprise the parties of the broad outline and
constituent facts of the reasoning on which he or she has acted. This indicates to the parties why
the decision was made and enables them to exercise any rights available to them in respect of it.
There is no requirement that a Magistrate provide lengthy or elaborate reasons. There only needs
to be articulated the essential ground or grounds upon which the decision was made.
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5.
The Magistrate made a ruling in respect of the certificates and then set out in some detail
the summary of A.'s evidence and his evidence under cross-examination. It was not submitted that
the Magistrate overlooked or missed some aspect of A.'s evidence. Whilst the Magistrate had before
him A.'s subjective account of what occurred at the time of the camera recording and he considered
that A. had a genuine belief in the evidence he gave, the Magistrate found that A.’s evidence was
not sufficient to constitute ‘evidence to the contrary’. Implicitly, the Magistrate found that the
prosecution had proved its case beyond reasonable doubt. The ss83 and 83A certificates became
proof of the matters contained within them, without more. Finally, the Magistrate's reasons
enabled a reviewing court to identify that there had not been an error of law.
Meeting of Creditors called at request of creditor – whether creditor liable to pay the costs
of both the calling and holding of the meeting.
In BH Apartments Pty Ltd v Sutherland Nominees Pty Ltd MC 33/2015, a creditor of a company
requested a meeting of the creditors to be called. A regulation was made that the creditor was
required to pay the full costs of calling and holding the meeting and a Magistrate upheld the claim.
Upon appeal –
HELD: Appeal dismissed.
1.
In the appeal from the Magistrate's decision, the question of law to be determined was
whether the expression ‘costs of convening the meeting’ in reg 5.6.15(1)(b) of the Corporations
Regulations 2001, properly interpreted, included the costs of holding the meeting or, rather, were
to be confined to the costs of calling the meeting.
2.
The scope of the powers and duties of administrators under s445F in relation to creditors’
meetings should be noted. A meeting-holding obligation is conferred by s445F(1)(b). Section
445F(2) requires administrators to give written notice thereof. As noted by the magistrate,
administrators must preside at (and therefore conduct) the meeting (s445F(4)), which they might
adjourn from time to time (s445F(5)). So, the powers and duties of the administrator as the
convenor of the meeting are not confined to the procedural task of sending out notices and the
like, but extend to attending and presiding at, and therefore conducting, the meeting. This was
relevant when interpreting s445F.
3.
There are powerful reasons of principle for giving primacy to the statutory text. First, the
separation of powers requires nothing less. Axiomatically, it is for the Parliament to legislate and
for the courts to interpret. Close adherence to the text, and to the natural and ordinary meaning
of the words used, avoids the twin dangers of a court ‘constructing its own idea of a desirable
policy’, or making ‘some a priori assumption about its purpose’.
4.
In the present case, the task of the court was to give the proper interpretation of the word
‘convening’ in reg 5.6.15(1)(b) of the Corporations Regulations 2001. In doing so it was necessary
to consider the meaning of that and cognate words in ss445F and 479(2) of the Corporations Act
2001.
5.
The word ‘convene’ and its cognates in those provisions clearly referred to the whole
process of calling and holding the meeting. In s445F, that conclusion followed from the various
steps specified in sub-ss (1)-(5). In s479(2), it followed from the general terms in which the meetingconvening duty was conferred.
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6.
BH. appealed to the Supreme Court on a question of law, which was whether the expression
‘the costs of convening the meeting’ in reg 5.6.15(1)(b) was confined to the costs of calling, or
included the costs of holding, the meeting. The magistrate correctly decided that the expression
included the costs of both calling and holding the meeting. Accordingly, the appeal was dismissed.
Search warrants – jurisdiction of Magistrate to order return of seized property
In Siddique v Martin & Anor MC 34/2015, the question whether certain paintings were seized
under a search warrant was determined by a Magistrate who held that the paintings were not
lawfully seized by the police. Upon appealHELD: Application for judicial review dismissed.
1.
It was a distraction to focus on whether the items were seized ‘lawfully’ under the warrant.
The question was whether the items were seized ‘under’ the warrant. Depending on the
circumstances, seized items might fall within that description even though, for example, the
warrant was invalid or some defect of procedure made its execution unlawful. A magistrate has
jurisdiction under s78(6) of the Magistrates' Court Act 1989 ('Act") to rule upon such matters.
2.
The word ‘under’ in the provision would be interpreted so as to include those and like
situations such that, where appropriate, the discretion in s78(6) would be enlivened and could be
exercised to order the return of the subject property. But, there was no such grey area in the
present case. The paintings concerned did not come within, and were not by police said to come
within, the property specified in the warrants.
3.
The words ‘under a search warrant’ direct attention to the authority to seize the ‘article,
thing or material’ in question. Section 78(6) does not confer discretion to order release of items
seized ‘in connection with’ execution of a warrant. Therefore, when determining whether property
has been seized ‘under a search warrant’, it is necessary to examine whether it was seized under
the authority of the warrant.
4.
It cannot be said, and was not by police said, that seizure of the paintings not specified in
the warrants was ‘expressly or impliedly required or authorised’ by them.
5.
The warrants specified items in relation to the production of fraudulent paintings by Brett
Whiteley. On no view did they specify the paintings by Howard Arkley and Charles Blackman.
Therefore the warrants conferred no authority on police to search for and seize those paintings.
As the warrants conferred no such authority, the paintings were not seized ‘under’ the warrants.
If the police had authority to search for and seize, and indeed detain, those paintings, which was
the issue in the separate civil proceeding in the Supreme Court, it was not under the warrants.
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6.
Accordingly, the Magistrate correctly determined that upon the proper interpretation of the
provision in s78(6) of the Act, the paintings by Arkley and Blackman were not lawfully seized by
the police.
Sentencing – combination of imprisonment and Community Corrections Order to be
considered
In Graeske v The Queen MC 35/2015, an accused pleaded guilty to recklessly causing serious
injury and was sentenced to 3 years’ imprisonment. The question on appeal was whether a
sentence of imprisonment together with a community corrections order should have been made.
HELD: Application for leave to appeal granted and appeal allowed. M. sentenced to one year's
imprisonment with a three-year Community Correction Order with conditions.
1.
The amendments to the Sentencing Act in September 2014 emphasised that community
correction orders were intended to have a punitive effect and could be an appropriate sentence to
address serious offending. The amendments to the Sentencing Act 1991 were emphasised in the
guideline judgment of DPP v Boulton [2014] VSCA 342.
2.
The absence of reference by counsel and the prosecutor to the option of imprisonment
combined with a community correction order was difficult to understand given the following
matters:
(a) consequent on the amendments, a term of up to two years’ imprisonment could be
combined with a community correction order, thereby meeting the prosecution submission
that an immediate custodial sentence was required;
(b) the applicant was a young offender;
(c) the applicant had never been given a community-based disposition before; and
(d) Dr Cidoni’s opinion, which the sentencing judge accepted, was that the applicant
suffered from a depressive disorder and an associated generalised anxiety disorder as well
as a substance abuse disorder associated with cannabis and alcohol. Consideration of how
effective treatment might be obtained, and consideration of the possibility of a combined
term of imprisonment and a community correction order in that context, was called for,
given the amendments, and given the matters subsequently elucidated in Boulton.
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3.
A sentence which ensured that psychological treatment, and, if appropriate, offencespecific programs, were available would enable the causes of the offending to be addressed. In that
way, the objective of community protection could be advanced. This was the kind of case in which
a combination sentence could be seen as appropriately serving the applicable sentencing
objectives.
Bail – exceptional circumstances
In R v Chung MC 36/2015, the accused was charged with cultivating and trafficking in more than
a large commercial quantity of drugs and applied for bail before Lasry J.
HELD: Application for bail refused.
1.
In DPP v Sabino [2005] VSC 195, Coldrey J referred to a variety of circumstances which
had been found in various cases to constitute exceptional circumstances including:
• the strength of the Crown case;
• the issue of delay;
• strong family support;
• stable accommodation;
• availability of employment;
• low risk of flight or re-offending;
• lack of prior criminal history; and
• the personal situation of the applicant.
This list is not exclusive and obviously other factors might arise in a particular case which will
contribute to the conclusion that exceptional circumstances have been established.
2.
The fact that a heavy sentence well in excess of the likely pre-trial detention might be
imposed if the prosecution case was to succeed should not be an answer to a delay that was
inordinate whether on its own or in combination with other circumstances.
3.
The Court should consider whether the delay — which at 20 months in custody is
significant — in combination with other circumstances, reached the threshold of exceptional
circumstances required under the Bail Act and was consistent with the principles referred to.
4.
The case against C. appeared to be quite a strong case. At this early stage there were
obvious difficulties in assessing the relative degree of strength but, that being said, the evidence
against C. appeared significant. There will be a significant delay which is very regrettable. On its
own, however, it was not sufficient to amount to an exceptional circumstance. C.'s family
circumstances coupled with his prospects of what appeared to be unsatisfactory temporary
employment did not add sufficiently to the delay to establish exceptional circumstances. The
circumstances of C.'s custody had been very difficult but the factors which militated in favour of
a conclusion of exceptional circumstances did not seem to apply in this case.
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5.
Accordingly, the application for bail was refused.
Procedure in court – Magistrate required accused to undergo a breath test in court
In Hart v Watt MC 37/2015, an accused appeared in court charged with disorderly behaviour.
Prior to taking a plea, the Magistrate remanded the accused in custody and took a plea from him
the following day. Subsequently, the accused sought a declaration that the Magistrate acted
unlawfully and without jurisdiction.
HELD: Declaration granted.
1.
In the circumstances, the Magistrate acted unlawfully, in that she had no jurisdiction to
(a) require H. to submit to breath tests;
(b) require police officers to administer those breath tests;
(c) remand H. into the custody of the police to the extent for the purpose of submitting to those
breath tests; and
(d) admit the results of the breath tests into evidence for the purpose of determining whether to
accept H.'s plea to the charge.
2.
There was no doubt that in the circumstances of this case, the Magistrate did not have the
power to require H. to undergo breath tests, to require police officers to administer those tests and
to remand him into the custody of the police for the purpose of conducting a breath test.
3.
The right to liberty and the right to bodily integrity or autonomy are two of the most
fundamental rights recognised by the common law. A requirement for a person to undergo a blood
test, or to provide a mouth swab, constitutes an interference with that person's right to bodily
integrity. A requirement that a person submit to a breath test, which requires a person to breathe
into breath-analysing apparatus, similarly constitutes an interference with that person's right to
bodily integrity.
4.
An incursion on the right of a person to bodily integrity, without their consent, is unlawful
in the absence of statutory authority. Such statutory authority exists in certain circumstances.
For example, a police officer has the power to require the driver of a motor vehicle to provide a
sample of his or her breath for testing, but only in the circumstances set out in s66 of the Road
Traffic Act 1974 (WA). However, a Magistrate has no statutory authority to require a person to
submit to a breath test to analyse his or her blood alcohol concentration for the purpose of
determining that person's fitness to enter a plea to a charge.
5.
A Magistrate also has no power to remand an accused person in custody for the purpose
of undergoing breath analysis to ascertain their blood alcohol concentration. Remanding H. into
the custody of the police for the purpose of conducting the breath test amounted to an interference
with his right to liberty, without authority.
6.
The course adopted by the Magistrate resulted in her falling into error in a number of other
respects. By proceeding as she did, the Magistrate denied procedural fairness to H. Evidence of
the breath test results was not properly presented in open court, and H.'s representative was not
given an opportunity to be heard in relation to its use, or to test the evidence, or to make
submissions about it. Further, the results of the blood tests clearly constituted evidence which
had been unlawfully obtained, and evidence of those results was therefore arguably (indeed, likely
to be) inadmissible.
7.
In addition, without evidence of the basis on which the breath tests were conducted, the
operation of the analysing equipment used to conduct the tests and the accuracy of the test
results, and most importantly, appropriately qualified expert evidence as to what the results of the
breath tests indicated about H.'s ability to understand the charge and the consequences of his
plea to the charge, the results of the breath tests constituted hearsay and unqualified opinion
evidence, which was inadmissible for those reasons as well.
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8.
The concerns of the Magistrate did not justify the pursuit of a course of action in which
the Court had no power to engage, and which resulted in an interference with H.'s rights of liberty
and bodily integrity. Other lawful courses of action such as standing the charge down until later
in the list that day, to permit H. the opportunity to recover before dealing with the charge would
have been open to the Magistrate, and should have been pursued instead.
Summons issued requiring documents to be produced set aside
In Holloway v State of Victoria and Anor MC 38/2015, a Magistrate set aside a witness summons
issued for production of documents in relation to speeding charges.
HELD: Appeal dismissed. H. failed to demonstrate any error of law on the face of the record on the
part of the Magistrate.
1.
The documents sought by H.'s subpoenas in relation to the minor speeding matters were
not of a kind or class referred to in certain previous authorities. Nor did those authorities cast any
doubt on the general principle that, in addition to the need for relevance, it must be ‘on the cards’
(or reasonably possible) that the documents sought will assist the defence of the accused.
2.
There is substantial appellate authority for the proposition that relevance alone cannot be
enough in a criminal case. In Attorney-General (NSW) v Chidgey [2008] NSWCCA 65; (2008) 182 A
Crim R 536, a judgment of the Court of Criminal Appeal of New South Wales given in 2008, there
is a section in the judgment of Beazley JA (with whom James and Kirby JJ agreed) which is actually
headed ‘Mere relevance not sufficient’. Under that heading, Beazley JA said, among other things
"It is not sufficient for a party seeking production of documents to merely establish that such
documents are or may be relevant." Beazley JA held that there was a second element of the ‘test’,
namely that it must be ‘on the cards’ that the documents sought would materially assist the case
of the accused. Her Honour demonstrated that it had been accepted in New South Wales for at
least the preceding 15 years that the test had two elements and that mere relevance was not
sufficient.
3.
Mere relevance to an issue in the proceeding is not sufficient to establish a legitimate
forensic purpose. Accordingly, even in cases of the particular kind to which paragraph [21] of State
of Victoria v Lane [2012] VSC 328 refers, there remains a need to show some (reasonable)
possibility that the documents might assist in defending the charge. Nothing in Alister v The Queen
[1984] HCA 85; (1984) 154 CLR 404, 414-15; (1983) 50 ALR 41; (1984) 58 ALJR 97, or in Lane
itself, is to the contrary effect.
4.
The Magistrate did not conflate the two stages or elements of the process for considering
whether or not to set aside the subpoenas. Reading the Magistrate's reasons as a whole, it was
plain that she asked herself the correct questions in accordance with the principles summarised
in Lane. Any apparent running together of the elements or stages was explicable by the
circumstance that the real issue did not reside in the first element (identifying a purpose for the
production of the documents) but rather in the second element (determining whether it was ‘on
the cards’ or a reasonable possibility that the documents might assist H. in defending the charges).
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5.
H. failed to demonstrate any error of law on the face of the record (or any relevant error at
all) on the part of the Magistrate. Accordingly, the proceeding was dismissed.
Motor vehicle collision – different evidence from witnesses
In City of Boroondara & Anor v Verrocchi MC 39/2015 the owner of a motor car damaged when it
collided with a garbage truck issued proceedings claiming damages and was successful before the
Magistrate. Upon appealHELD: Appeal dismissed.
1.
A magistrate is required to give adequate reasons for decision and it is an error of law for
a magistrate not to do so. The reasons for this requirement are several and the importance of
giving adequate reasons for decision cannot be doubted. The reasons must deal with the issues of
importance in a case and disclose the path of reasoning that was adopted to the resolution of those
issues. Unless issues of fact turn upon straightforward questions of credit, it is not enough simply
to say that the version of one side rather than the other is to be preferred. Where, as in the present
case, there was more to reconcile than credit, the basis for preferring one body of evidence to
another had to be indicated. Reasons for decision must be read as a whole, in the light of the
evidence and fairly in context. These principles have been stated and restated by the courts on
many occasions.
2.
Considered in the context of this evidence, it was very clear that, in the reasons given by
the magistrate, he addressed the issues of importance in the case and provided reasons which
intelligibly disclosed the path of reasoning that was adopted.
3.
In the second paragraph of his reasons, the Magistrate set out the competing evidence in
relation to the critical question of whether the truck was immobilised at the time of the collision.
In stating that Mr V. junior was well placed to see what actually happened, the Magistrate
indicated that the truck was moving as that witness had deposed. This necessarily involved
rejection of the evidence of the garbage truck driver that the rubbish collection arm was extended
at that point and that the truck was stationary when the collision occurred.
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4.
The magistrate went on to refer to the evidence generally, including the tendered
documents. Read fairly and in context, the magistrate stated that the preponderance of the
evidence was that the garbage truck driver had driven his truck into V.'s vehicle immediately after
completing the rubbish collection operation, that is, when the rubbish collection arm had been
withdrawn. There was no speculation or guesswork as to why the Magistrate decided the case in
the way that he did. It came from a fair reading of the Magistrate's reasons for decision.
Costs order on setting aside summons for production of documents
In Agar v McCabe & Anor MC 40/2015, a Magistrate allowed an order to be made for costs where
a summons for production of documents had been set aside.
The only error made by the Magistrate was to approach the exercise of the costs
HELD: 1.
discretion on the footing that the costs were payable to the witness, the person subpoenaed to
produce documents, rather than the informant. When the reasons of the Magistrate were viewed
as a whole, the error in the identity of the party in whose favour the order was made was not
critical to the reasoning he employed. The Magistrate considered the costs order in the context of
the whole prosecution, taking into account the ultimate level of the penalty for the purposes of
considering the principle of proportionality, and what usually happens in like matters for the
purposes of considering the principle of consistency.
2.
Proportionality and consistency are only two of the considerations that guide the costs
discretion and provided they are taken into account it is not a ground of review that they might
have been given excessive or inadequate weight, or that a different conclusion on costs could or
should have been reached. In this case the principles were taken into account, along with other
matters relevant to the exercise of the discretion.
3.
The fact of the error as to the identity of the applicant party did render the decision liable
to an order in the nature of certiorari. For these reasons, and because the grant of an order in the
nature of certiorari is discretionary, notwithstanding the error made by the Magistrate, it was not
appropriate to quash the order and to remit it once again for re-hearing. In addition to the factors
41
42
referred to, there was a clear public interest in this debate over the costs of the subpoena ending
here and now.
Driving under the influence of alcohol – not trifling
In Jia v Police MC 41/2015, the defendant was found guilty of driving a motor vehicle whilst under
the influence of alcohol and the Magistrate refused to deal with the matter on a trifling basis. Upon
appealHELD: Appeal dismissed.
1.
The ordinary meaning of “trifling” is of little moment or insignificance. Whether an offence
of this nature is trifling is to be determined by reference to the conduct constituting the offence
and the circumstances in which it is committed. A typical example of this offence would not qualify;
rather, it would be an unusual or exceptional case which might answer that description.
Siviour-Ashman v Police [2003] SASC 29; (2003) 85 SASR 23 at 27, applied.
Police v Head [2013] SASC 185;
Police v Ludlow [2008] SASC 43; and
Campbell v Fuss (1991) 55 SASR 355, considered.
2.
The circumstances of this offending could not be seen to be trifling. Not only was the car
to be driven at least 100 metres down a city street, but J.'s control of the car was plainly quite
inadequate and a collision ensued. There was no pressing need for J. to be driving at all. His blood
alcohol level was such that he must have felt affected. It accounted at least in part for the error of
judgment he made. Given that there was no prospect of persuading the Chief Magistrate that the
offence was trifling, any perceived failure to alert J. to his right to give evidence in support of such
an argument came to nothing.
Accident compensation – the only source of entitlement
In Nelson v Arrium Ltd MC 42/2015, an employee suffered a crush injury to his right hand plus a
permanent impairment. The employee was entitled to compensation which was paid but he
commenced proceedings seeking compensation for the total loss injury. The Magistrate dismissed
the clam. Upon appealHELD: Appeal dismissed.
1.
The question to be determined in this appeal was whether s98C or s98E of the Act
permitted or required separate assessment under s98C of the total loss injury and the hand injury.
As will be seen, ss98C and 98E, considered alone or together, do not require or permit the total
loss injury and hand injury to be assessed separately under s98C.
2.
It is only the opinion of a medical panel that is to be considered by the court, with no other
aspect, such as the reasons, to be considered. Although the Magistrate referred in some detail to
the reasons of the Medical Panel, the court is ultimately bound by the certificate of opinion alone.
Lianos v Inner & Eastern Health Care Network [2001] VSCA 53; (2001) 3 VR 136, applied.
3.
In the words of the legislation, the total loss injury and the hand injury to N. were injuries
arising out of the same event or circumstance. That event or circumstance occurred when N.
suffered a crush injury to his right ring finger while operating a panel folding machine and a chain
mesh machine. The crimping attachment of the machine crushed N.'s finger, and as a result, the
finger was not viable and a partial amputation was performed. The single event or circumstance
was the crush injury.
4.
The way in which N. was in fact compensated did not leave any of his incapacities or
impairments uncompensated. The compensation awarded, namely $21,356, was calculated on the
basis of the Medical Panel’s assessment of 11% combined whole person impairment. The 11%
whole person impairment figure took into account the total loss injury and the hand injury. The
sum $21,356 therefore covered both the total loss injury and the hand injury.
5.
By virtue of s104B(5A) of the Act, N. was required to include the hand injury and the total
loss injury in his claim for compensation under s98C. The effect of s104B(5AA) was that N. was
only entitled to make one claim for compensation under s98C in respect of those injuries.
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6.
Accordingly, the conclusion reached by the Magistrate was correct and the appeal was
dismissed.
Sentencing in respect of illegal earthworks and vegetarian removal
In Lewis & Mornington Peninsula Shire Council v Mangano MC43/2015, property owners removed
vegetation from their property and an adjoining parcel of government land mainly to protect them
from bushfires. The Magistrate imposed a fine of $500 on each plus costs. Upon appealHELD: Appeals dismissed.
1.
The respondents (Ms.) in this matter were not seeking to develop the land, nor was there
any allegation they were seeking to benefit in some way from the removal of the vegetation. The
evidence before the Magistrate was that Ms. had removed the vegetation in response to bushfires
and that they had attempted to make enquiries with the Council prior to undertaking the removal.
DC Consolidated Investments Pty Ltd v Maroondah City Council [2011] VSC 634, distinguished.
2.
What was relevant in this case was that the only evidence before the Magistrate, which was
not contradicted, was that Ms. received information from the Council officer that there was no
problem cutting down the trees on the inside of the property and that there were no difficulties in
the area that was contained inside ‘that yellow line’. There was no evidence that Ms. were getting
the property ready for some commercial development or residential development or that the
property was being prepared as a potential building site or that they were chopping down the trees
‘in order to flog the firewood to make money’. The trees were cut down and left in situ.
3.
While the penalty imposed was at the lower end of the range, the Magistrate gave
consideration to mitigating circumstances of the offences. The appellants conceded when it was
put to them by the Magistrate that there were mitigating circumstances of the offending, that it
was not an offence motivated by greed, for some sort of ill purpose and the Ms. thought they were
doing the right thing. The appellants’ solicitor agreed that those circumstances mitigated what
would otherwise have been a large penalty.
4.
In summary, the sentences imposed by the Magistrate on Ms. were not manifestly wrong
or inadequate. The sentences were open to the Magistrate and not disproportionate to the
seriousness of the crime. In light of the offending and the circumstances and seriousness of the
offending, the sentences imposed would not shock the public conscience and undermine public
confidence in the ability of courts to play their part in deterring the commission of crime.
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5.
In the circumstances, the appeal was dismissed.
Exceptional circumstances in a Children’s Court matter
In K v Children’s Court of Victoria and Anor MC 44/2015, a person charged with serious offences
in the Children’s Court was the subject of an application that the charges be uplifted to the
Supreme Court. Upon appealHELD: Application for judicial review refused.
1.
The Children’s Court has considered the meaning of ‘exceptional circumstances’ in the
context of s356 of the Children, Youth and Families Act 2005 in various matters. Relevant
principles that can be extracted from cases include:
(a) the Children’s Court should relinquish its embracive jurisdiction only with great reluctance;
(b) the gravity of the conduct and the role ascribed to the accused are important matters but are
not the only factors to be considered;
(c) other factors for consideration may include the maturity of the offender, the degree of planning
or its complexity, and the antecedents of the alleged offender or particular features peculiar to him
or her;
(d) the most important criterion is the overall administration of justice – that is, justice as it affects
the community as well as the individual;
(e) the nature of the evidence to be called may render a matter unsuitable for summary
determination – evidence about political motivation, or forensic or scientific evidence, may fall
within this class;
(f) ‘exceptional’, in this statutory context means more than special, it means very unusual.
2.
The Magistrate concluded that the combination of the following factors demonstrated
exceptional circumstances:
(i) the s101.6 charge carried with it a maximum penalty of life imprisonment;
(ii) the gravity of the offending must be assessed by reference to its factual context;
(iii) K had accessed material provided by a terrorist organisation, including material instructing
the construction of IEDs;
(iv) K possessed either all or nearly all of the materials required for the production of IEDs;
(v) K’s notes and Facebook postings indicated a degree of radicalisation;
(vi) K appeared to have engaged in a significant degree of planning towards the construction of
IEDs;
(vii) K was (and is) a child, but was less than 12 months off his 18th birthday (and thus being
amenable to adult court jurisdiction); and
(viii) whilst K lacked an antecedent criminal history, there appeared to be past expressions of
apparent pro-jihadist, ISIS supportive sentiments.
3.
The finding of exceptional circumstances imports a discretionary value judgment. The
Court is required to undertake a nuanced consideration of the factors of the alleged offending, the
antecedents of the accused child, the statutorily enshrined values of the Children’s Court and the
sentencing jurisdiction and considerations of that Court. Each case is unique and will be
determined on its own facts.
4.
It is settled law that inadequacy of the Children’s Court sentencing jurisdiction constitutes,
in itself, an exceptional circumstance which would justify uplifting the impugned matter to a
higher court.
5.
Each case will turn upon its own facts, and in each case the Children’s Court magistrate
or judge will look at all the circumstances that surround both the offending and the alleged
offender. And in this case, that is what his Honour did.
6.
Having regard to all the circumstances, three years’ imprisonment, if K. was found guilty
of the offences, would not have been sufficient.
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7.
It was not only open to the Children's Court Judge to conclude that the relevant exceptional
circumstances existed, the circumstances set out at paragraphs [4]-[8] demanded that conclusion.
K. failed to demonstrate Wednesbury unreasonableness. Further, the comprehensive and
conscientious reasons delivered by his Honour (set out in summary form at paragraph [28])
provided an evident and entirely intelligible justification for his decision.
Application of principles of consistency and proportionality for costs in a civil proceeding
In Agar v McCabe & Anor (No 4) MC 45/2015, a Magistrate reheard a question of costs and made
the same order as one made previously by another Magistrate. The Magistrate gave reasons that
took into account the principles of consistency and proportionality. Upon appealHELD: Appeal dismissed.
1.
It is relevant to the determination of the question of costs in this case that the application
was a civil proceeding, even though it concerned costs awarded in connection with a criminal
proceeding. The Civil Procedure Act 2010 applies and brings with it the overarching obligations
that are imposed upon the litigants and their lawyers. The relevant overarching obligations are:
(a) to use reasonable endeavours to resolve a dispute by agreement;
(b) to narrow the issues in dispute; and
(c) to ensure costs are reasonable and proportionate to the complexity or importance of the issues
in dispute and the amount in dispute.
2.
These three obligations are relevant to the exercise of the discretion as to costs in this case
in the following ways:
(a) the defendant made a reasonable offer to resolve the costs dispute before the rehearing in the
Magistrates’ Court;
(b) the issues raised encompassed matters that would not have been advanced by the plaintiff if
he had been properly advised; and
(c) the amount in dispute was the recovery of costs ordered rather than the ultimate speeding fine
that may have been imposed.
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3.
The purpose of a costs order is to compensate the successful party for the costs incurred,
and not to punish the unsuccessful party. It is thus distinct from any punishment and the
application of the principle that the punishment should ‘fit the crime’. None of the other matters
raised by the plaintiff were good or persuasive reasons that convinced the judge to differ from the
usual practice of ordering that the costs follow the event.
Criminal charge laid – permanent stay of proceedings granted
In Police v Wells MC 46/2015, a Magistrate granted a permanent stay of a charge of indecent
assault on the ground that the prosecution had not attended to certain tasks in a satisfactory
manner. Upon appealHELD: Appeal allowed. The trial should not have been stayed. At issue was not disclosure but the
failure of the police to obtain further statements in accordance with the Magistrate's orders. Those
orders should not have been made and the order staying the proceedings was set aside and
remitted to the Magistrates' Court for trial.
1.
The matters which apply where an application for a permanent stay of proceedings are:
(i) the absence of relevant material in criminal proceedings, whether due to inadequate disclosure
by the prosecution, or to a deficient police investigation, is but one factor bearing upon whether a
stay should be ordered;
(ii) the court must look to the evidence that is available in deciding whether a conviction would be
attended by an unacceptable or substantial risk of miscarriage. The degree of acceptable risk will
vary from case to case;
(iii) it is to be remembered that courts are well versed in making findings of fact in circumstances
where not all relevant evidence is available. Only on rare occasions will deficiencies in the evidence
render a stay of proceedings necessary;
(iv) an overarching enquiry is whether the unfairness resulting from the lack of material will
preclude a fair trial. It may be that the unfairness to the accused is tempered by other facets of
the trial process, including the protections afforded by the presumption of innocence and the onus
of proof;
(v) a mere general sense of unfairness will not suffice; it must be of such significance that,
notwithstanding the powers of the court to ensure fairness, a fair trial is unattainable;
(vi) that an investigation of an alleged crime has not been carried out to its full potential will not
necessarily mean that a trial will be rendered an abuse of process. There exists a public interest
in ensuring that prosecutions for criminal offences are seen through to trial where there is at least
a reasonable evidential foundation;
(vii) the power to order a stay may only be used to prevent proceedings that amount to an abuse
of process. It is not to be employed as a means of sanctioning or punishing non-compliance with
case management procedures or directions;
(viii) even if the power to order a stay is enlivened, it does not necessarily follow that it must be
exercised; in deciding whether a stay is appropriate the court is to be guided by that which the
interests of justice require.
2.
While there were a number of facets of the police investigation in this matter that could
have been attended to with greater diligence, that alone did not justify a stay. The magistrate’s
directions to the prosecution involved tasks that were never likely to bear fruit. The stay order
appeared to be more in the nature of a sanction for failing to attend to those tasks in a satisfactory
manner than an attempt to avert a miscarriage of justice.
3.
The question to be asked was whether, in all the circumstances, W. could not receive a fair
trial. That was not the case and accordingly a stay of proceedings was not warranted.