CASE SUMMARIES 2007
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Drink/driving
1. DPP v O'Rourke MC01/07 is an important case dealing with the definition of "prescribed
concentration of alcohol" in s49(1)(b) of the Road Safety Act 1986. The Court of Appeal stated that
the maximum of 0.05BAC applies to all drivers. However, if a driver is subject to zero blood alcohol
then that is an aggravating factor which may affect penalty. Accordingly, if the prosecution failed to
prove that a driver was subject to the zero blood alcohol limit then the driver was subject to the
ordinary penalty.
2. In R v Ciantar MC08/07 the Full Bench of the Court of Appeal (The Chief Justice and four
Justices) held that evidence given by suitably-qualified experts in relation to the PBT device is
admissible in evidence.
Costs on dismissal of charge
1. Since Latoudis v Casey (1990) 170 CLR 534 it is well-known that ordinarily, when a summary
prosecution is dismissed, the informant should be required to pay the defendant's costs. However,
there may be circumstances which may take a case outside the ordinary and which might justify a
refusal or reduction of costs. In Kymar Nominees Pty Ltd v Sinclair MC02/07, a magistrate found that
the case fell within the exception to the general principle and was upheld on appeal.
2. Latoudis v Casey (1991) 170 CLR 534 does not establish that a successful defendant should be
fully indemnified by the prosecution. The purpose of an order for costs is to compensate (or
indemnify) the party in whose favour the order runs, rather than to punish the party against whom
the order is made. Any costs order is an indemnity but that does not mean that the indemnity is
100%. In awarding a full indemnity of counsel's fees and suggesting that a defendant should not
ordinarily be out of pocket, the magistrate acted on a misunderstanding of the concept of "indemnity"
in relation to costs and accordingly, was in error. See Nguyen v Oberoi Hotels (Australia) Pty Ltd,
MC31/07
Emailing reasons for decision
At the end of Magistrates Cases 2007 Part 1 under the heading Obiter, the question is posed: Should
a Magistrate’s judgment be emailed to the parties? The answer was ‘No’ in reliance on the judgment
in Esso Australia Pty Ltd v Robertson [2005] VSCA at 9 (Warren CJ, Batt and Chernov JJ A.)
In the case of Kymar Nominees Pty Ltd v Sinclair MC02/07, the presiding magistrate has informed us
that the reasons in that case were not emailed to the parties either in ignorance or cavalier disregard
of the words of the Court of Appeal in Esso. The learned magistrate said that the observations of the
Court in Esso were considered before the reasons for decision were emailed in Kymar’s case.
Although the Court of Appeal said that ‘the practice should be entirely discountenanced for a court’,
the matter of concern in that passage was the issue of the right of the public to be present in court to
hear the judgment being given. That concern was addressed by the magistrate in Kymar and in a
number of cases since Esso, by publishing the reasons in open court and placing them on the court
file on a date notified in advance to the parties. That is done after the reasons are emailed and the
parties have had an opportunity to consider them. It is never done without the prior consent of the
parties. The magistrate states that the purpose is to save costs and inconvenience both for the
parties and the court. It is almost invariably accepted gratefully by the parties, who often do not
appear when the reasons are published. If they do appear they have usually prepared submissions
on the basis of the reasons. They are not ambushed by reasons presented to them for the first time
and do not have to seek an adjournment to prepare arguments. The question of emailing reasons
was raised with Neave JA after Esso when Her Honour was still Law Reform Commissioner, as an
access to justice issue. It is interesting to note that in the recent case of Shaw v Yarranova Pty Ltd
and Anor [2007] VSCA 48 the Court of Appeal (Warren CJ, Eames and Neave JJ A) published their
judgment in open court and then emailed it to the parties to a costs dispute where the parties had
not been notified of the date for delivery of judgment (apart from the Press) and failed to attend on
the day. The magistrate in Kymar submits that the question posed at the outset might be answered
‘Yes’ where the reasons are published in open court.
Bail - "exceptional circumstances"
In Mustica v DPP MC03/07 M. was charged with serious drug offences which meant that he had to
show "exceptional circumstances" which justified the grant of bail. Among other things, Hollingworth
J considered "delay" as a factor and Her Honour's judgment in granting bail is detailed and helpful in
this vexed area of the law.
Crimes Act 1958 s464H
The principles relating to the admissibility of statements which have not been tape-recorded are
fairly well-known. The decision of Hollingworth J in DPP v Donnelly & Reed MC04/07 is a useful case
dealing with fact-situations where the provisions of the Act were not followed. Her Honour said that
given the desire to protect the integrity of the questioning process, "courts should avoid any technical
interpretation which would unduly confine the area of operation of s464H."
See also R v Drasko MC09/07.
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Costs – Offer of Compromise
In Stipanov v Mier (No 2) NC05/07, Hollingworth J dealt with the question of costs in civil
proceedings generally and in relation to cases where an offer of compromise has been made. Her
Honour held:
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Whilst a court has power to order that costs be taxed on a party and party basis, a solicitor
and client basis, an indemnity basis or such other basis as the court may direct, the general rule is
that the court will order costs to be taxed on a party and party basis.
2.
The Rules do not provide for the situation where the plaintiff fails altogether and judgment is
given for the defendant. However, it is well-established in such an event the court may, in the
exercise of its general discretion, award costs to the defendant on a more generous basis than party
and party from the time the offer was served.
3.
The principle in Calderbank v Calderbank [1976] Fam 93; [1975] 3 All ER 333 exposes a
litigant to the risk of a costs order if, taking into account all relevant considerations including the
facts known to the offeree at the time of the offer, the offeree unreasonably ignores a reasonable offer
of settlement, whether made by letter or formal offer of compromise.
4.
The reasonableness of the offer of compromise has to be ascertained on the facts known at
the time of the making of the offer. At the time of the offer, it would have been reasonable for those
advising S. to have concluded that she had strong prospects of establishing negligence and that
damages in excess of $35,000 might be recovered. There is a particular danger in considering issues
of witness credibility through the prism of hindsight.
Richfield Investments v OCBC Ltd [2004] VSC 351; and
Grynberg v Muller [2002] NSWSC 350, applied.
5. In the circumstances, S. did not act unreasonably in rejecting the first offer of compromise.
Accordingly, S. should pay M.s costs on a party/party basis.
Occupational Health & Safety
In Schierholter v County Court of Victoria & Anor MC06/07, the Court of Appeal had no difficulty in
rejecting a submission that the Authority to prosecute was deficient. This argument has cropped up
in other cases and seems like a technical argument that has surely run its course.
Re-examination of Witness
The rule laid down by Harris J in Hatziparadissis v GFC (Manufacturing) Pty Ltd [1978] VR 181 that
in order to compel tender of a document it must be done whilst the witness is still under crossexamination has been overruled. This decision had been doubted and not followed in other
Australian courts. Now the Court of Appeal in R v Vella MC07/07 has said that the court controls the
reception of evidence and there is no time limit on the tender of a document provided the crossexaminer has made it admissible and it is receivable under the ordinary rules.
Evidence – PBT and Breath Analysing Instruments
The Court of Appeal in R v Ciantar MC08/07 considered the admissibility of evidence given in
relation to PBT and breath analyzing instruments and whether the readings obtained from a PBT
device is admissible as evidence of blood/alcohol concentration. The Court held:
1. The provisions of S58 of the Road Safety Act 1986 are facultative. They do not purport to exclude
nor do they have the effect of rendering inadmissible proof aliunde of blood alcohol concentration.
Like any other bodily condition, blood alcohol concentration may be proved by any recognised and
reliable scientific technique. A court may admit results of a test conducted with a scientific
instrument on the basis of evidence from a witness expert in its use. It is sufficient if it is established
that it is a scientifically accepted instrument for its avowed purpose and that the particular
instrument was handled properly and read accurately.
Mehesz v Redman (No 2) (1980) 26 SASR 244, followed.
Porter v Kolodzeij (1962) VR 75, doubted.
2. Where evidence was given by expert witnesses that the PBT is within a class of instrument
generally accepted by experts as accurate for its particular purpose and that if handled properly
produces accurate results and there was evidence to show that the PBT was handled properly and
read accurately by the operator on the relevant occasion, a court was not in error in admitting
evidence of the PBT result.
Tape-recorded interviews
In R v Drasko MC09/07, the Court of Appeal considered the question of the admissibility of a taperecorded interview. In dismissing the appeal against conviction and sentence, the Court held:
1. The statements were made in furtherance of D.s desire to secure benefits under a civil contract of
insurance pursuant to arrangements into which she had voluntarily entered. The duty of disclosure
under a civil contract of insurance in no way restricts the capacity of an individual to speak or
remain silent under the criminal law or interfere with the manner in which the choice may be
exercised. D. can be taken to have been well aware that the insurance company was entitled to
ascertain whether or not she was entitled to benefits before any payment was made and her conduct
on this occasion constituted, on the prosecution case, an integral part of her alleged criminal
enterprise. No question of the making of a statement against penal interest in respect of an earlier
committed crime arose. The evidence was not probative as an admission against interest and
admissible on this basis as an exception to the hearsay rule, but because it was directly relevant to
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the central question in the trial, namely, whether D. had attempted to defraud the company. In any
event, there was nothing whatever to suggest that D.s will may have been overborne or her capacity
to exercise a free choice compromised in any way. In so far as there was an inducement for the
making of the statements, it arose from the applicant’s earlier and continuing desire to secure
benefits under her contract of insurance. Finally, there was no indication that either D. or the private
inquiry agent ever perceived him as "a person in authority", save perhaps to the limited extent that
he could have reported adversely in relation to a civil claim.
2. D. was on any view of the evidence, not "a person in custody". The police officer did nothing more
than secure a voluntarily made statement from D. withdrawing her complaint and setting out her
stated reason for doing so. The police officer engaged in no abuse of power, trickery or subterfuge.
3. Having regard to the fact that the reported 'burglary' did not take place and that none of the
chattels the subject of D.s claim belonged to her or were at the premises when the 'burglary' allegedly
occurred, there was ample evidence before the jury to support the conviction of D.
4. In relation to sentence, whilst D. had no prior convictions, was suffering symptoms of significant
depressive illness and the adverse consequences suffered including loss of her job, it was open to the
judge to state that "insurance contracts are contracts of ultimate good faith and require the
scrupulous honesty of people who deal with insurance companies. Attempted frauds of this nature
must be the subject matter of curial disapproval, and the message must be clear to all people who
are minded to commit offences of this nature that they will not be tolerated." There was no error in
the sentence imposed.
Crown Proceedings Act proceedings – relief against a forfeiture order
In Renate Mokbel v DPP MC10/07, Gillard J dealt with an application by a surety for relief against a
forfeiture of bail order. In dismissing the application, Gillard J held:
1. It is clear from the wording of s6(4) of the Crown Proceedings Act 1958 ('Act') that M. carried the
burden of persuading the Court on the balance of probabilities that it "would be unjust to require her
to pay the amount undertaken to be paid having regard to all the circumstances of the case". The
Court’s jurisdiction extends to varying or rescinding the order if the circumstances justify it. The
question is, would it be unjust to require the applicant to pay the amount undertaken to be paid,
taking into account all the circumstances of the case?
2. First, to be a surety is a serious matter, and suretyship is not to be entered into lightly. Secondly,
the accused person on release is entrusted by the Court to the surety, who has an obligation to
ensure that he/she attends the trial. This requires the surety to take positive steps. It is no answer
for the surety to stand by and do nothing and then state that he or she believed that the accused
would attend his/her trial. By signing an undertaking, the surety guarantees to the Court and the
community that he or she will take steps to ensure the presence of the accused at trial. In one sense,
it is a guarantee, but the legal principles relating to guarantees in commercial law do not apply to the
surety’s obligation.
3. The first question on an application under s6(4) of the Act is to determine whether or not a surety
has fully and properly performed the duties imposed upon him or her by the suretyship. The test is
whether or not the surety has taken all reasonable steps to secure the attendance of the principal
party to the undertaking. The surety must take some positive step. To do nothing would not satisfy
the test.
4. Absent any changed circumstances relating to the financial affairs of the surety after the
undertaking has been executed, the impact upon the surety’s financial position of enforcing the
undertaking is not a matter that should be taken into account. The fact is that on occasions,
accused persons fail to surrender themselves for trial. The possibility of this occurring is not remote.
There is a risk. If the risk materialises, then the undertaking requires the surety to pay the full
amount. That is what the surety agrees to do. It would undermine the system if, having given
thought to entering into the undertaking and swearing an affidavit as to the assets which he or she
has to meet the undertaking, the surety could be relieved from the full obligation and ordered to pay
a lesser amount because of the financial impact.
5. Having regard to the fact that M. did not take all reasonable steps to ensure attendance of the
accused at trial, that there were no new circumstances which should be taken into account in
considering the financial impact, that M. was not a genuine surety and that M. did not disclose her
true financial position, M. failed to persuade the Court that it would be unjust to require her to pay
the amount undertaken to be paid.
6. Factors relevant to the Application. See paras 64-67 of His Honour’s judgment.
Charter of Human Rights
In R v Williams, MC11/07, King J dealt with aspects of the new Charter of Human Rights and
Responsibilities Act 2006 which fully comes into operation on 1 January 2008. This Act applies to
Magistrates' Courts and Her Honour's comments are essential reading for all Magistrates. The
intention of Parliament is for the Courts to become actively involved in the interpretation of the
Charter and Human Rights after 1 January 1908. The rights as declared, at the least in s25 would
be rights that the Court would be bound to take into account in ensuring that a fair trial was
conducted pursuant to s24. Magistrates will be well-advised to familiarise themselves with the
relevant provisions of this Act
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Whether sentence for an offence under the Road Safety Act 1986 makes a person a prohibited
person for the purposes of s3 of the Firearms Act 1996.
In R v Coner MC12/07 the Court of Appeal held:
A conviction and sentence of imprisonment for an offence under the Road Safety Act 1986 does not
make one a prohibited person for the purposes of the Firearms Act 1996 ('Act'). Accordingly, a court
was in error in finding that C. was a prohibited person within the meaning of s3 of the Act and
finding the charge proved.
Duty of Magistrates to give reasons
It has been said time and again that Magistrates have a duty to give reasons for judgment. This is so
that the appeal court can identify the reasoning and the basis upon which the decision was made. In
Insurance Manufacturers of Australia Pty Ltd v Vandermeer MC13/07, after a two-day hearing a
Magistrate gave brief reasons which failed adequately to disclose how he came to his ultimate
conclusion. This meant that the matter had to be sent back for retrial before another Magistrate
which involved a waste of time and costs for all concerned.
Natural Justice
In R v Bennett MC14/07, the Court of Appeal heavily criticised a County Court Judge who failed to
give counsel a copy of a Pre-sentence report and then proceeded to impose a sentence of immediate
imprisonment without giving Counsel an opportunity to make further submissions. The Chief Justice
said such a course was "entirely inappropriate" and Nettle JA said it was "surprising and regrettable
that a judge of the County Court should receive and act upon a pre-sentence report without affording
an opportunity to those to whom it relates to consider it and make submissions upon it."
Deeming provisions of Drugs Act
In R v Tran MC15/07, the Court of Appeal handed down a useful decision which deals with the way
in which the deeming provisions of the Drugs, Poisons and Controlled Substances Act 1981 operate.
The phrase "prima facie evidence" is examined along with the elements of "possession".
Unrepresented defendants and natural justice
In Rich v Magistrates’ Court of Victoria and Anor, MC16/07, the question was raised whether there is
a breach of the rules of natural justice if a committal proceeding is conducted with the accused not
legally represented. Maxwell P said that whilst it might be preferable for the accused to be legally
represented, there was no breach of natural justice in proceeding with the accused unrepresented.
His Honour also said that a court has no power to review a decision by Victoria Legal Aid about the
provision or otherwise of funding for a particular case. “Availability of legal aid is not unlimited”, His
Honour stated. Maxwell P endorsed the views of the committing magistrate who said there was a
duty on the court to ensure that an accused person is not obstructed by the authorities in the
preparation of the case.
Suppression orders
The question of making a suppression order was ventilated again in Herald & Weekly Times Pty Ltd v
DPP & Ors, MC17/07. Kaye J said that the court when making the order needs to be satisfied that
the order was “necessary” for one or more of the purposes stipulated in the statutory provisions.
Where a court had “no doubt” in light of information provided by an informer that the circumstances
were exceptional and grave risks existed, it dictated the conclusion that it was necessary to make a
suppression order so as not to endanger the physical safety of the informer.
Matters to be taken into account when making a suppression order
In ABC v D1 & Ors; ex parte The Herald & Weekly Times Ltd MC47/07, Forrest J set out matters
which should be taken into account when a court is considering making a suppression order. In
relation to the making of a pseudonym order, His Honour said: "A court, in determining whether to
make a pseudonym order, is entitled to take into account the individual considerations affecting the
person seeking the order and balance those against the principal rule of open justice in determining
whether the administration of justice warrants the making of the order. Relevant to these individual
considerations is whether there is a real risk of the party or witness suffering psychological harm as
a result of publication of his or her name or the names of other parties. Also relevant is the real risk
of a party not proceeding with an action in the event that he or she or another person is identified."
Service of Taxation Notices
For some reason, the service provisions of the Income Tax Assessment Tax Act 1936 have to be
strictly complied with in relation to the service by the Deputy Commissioner of Taxation of penalty
notices. It has been held that if the DCT wishes to rely on the regulations to effect service, the
Commissioner must strictly comply with the provisions. In DCT v Guastalegname, MC18/07, the
Commissioner sent a penalty notice to the defendant at his address for service. Instead of including
the tax agents company name on the notice, the DCT addressed the notice to the defendant. The
notice obviously came to the attention of the defendant who appeared in court and submitted that
the provisions of service had not been strictly complied with. The magistrate agreed and the charge
was dismissed. Williams J agreed with this conclusion.
Preliminary Breath Test
Where a motorist was pulled over by a police officer standing in the middle of the road holding a
torch and required the motorist to undergo a preliminary breath test, a magistrate was correct in
holding that the requirement was not made at a preliminary breath testing station. In s53(1) of the
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Road Safety Act 1986, there are four separate sets of conditions which allow a police officer to require
a person to undergo a PBT. In Maitland v Swinden, MC19/07, the Court of Appeal upheld the
magistrate’s decision to convict. Redlich JA also said that evidence of compliance with s53 is not an
essential element of the offence under s49(1)(f) and it need not be particularised in the charge. It is
sufficient that there be evidence which enables the court to be satisfied that there has been a lawful
request pursuant to s53(1).
New Facts and Circumstances
The “new facts and circumstances” provisions of the Bail Act 1977 were considered by Curtain J in
O’Reilly v DPP, MC20/07. In that case O’Reilly was charged with serious offences and bail had been
previously refused. In a subsequent application for bail, Curtain J held that the fact that a coaccused has been granted bail is not a new fact or circumstance justifying bail. “Each application for
bail must be decided on its own facts and circumstances”, her Honour said. Also, a judge expressing
remarks at a preliminary hearing, which remarks are at variance with the assessment of the case,
cannot amount to new facts and circumstances.
Assignment of debt: Unjust enrichment
The assignment of debt was discussed in detail by Kaye J in Alma Hill Constructions Pty Ltd v Onal,
MC21/07. In that case, O’s motor vehicle was damaged and later repaired. A third party paid the
repairer for the value of the work done in exchange for an assignment of the debt. O. was later sued
by the third party but no notice of the assignment was given to O. The magistrate, in declining to
follow a decision of the Queensland Court of Appeal (Thomas v National Australia Bank Limited & Ors
[2000] 2 QdR 448), held that the third party could not sue in its own name without prior notice of
the assignment having been given to O. The magistrate also held that there was no unjust
enrichment on O’s part as O and the third party were “strangers” to each other. Kaye J said that the
magistrate should have followed Thomas’ Case. There was no need for the notice of assignment to be
first given to O. In relation to the unjust enrichment point, the magistrate was correct as it could not
be said that O. received any benefit from the third party in circumstances in which he should have
realised that he would be under an obligation to pay for it.
Easement of Way
The question of easement of way was reviewed by the Court of Appeal in Boglari & Anor v Steiner
School and Kindergarten, MC22/07. Damages were claimed in the Magistrates’ Court when the
Boglaris constructed a gate and fence thereby interfering with the rights granted by an easement.
Neave JA discussed the question of the use of easements in detail and held that the magistrate was
not in error in finding that the use of the easement had been interfered with. Also, the magistrate
was not in error in making an order that if the Boglaris did not remove the obstruction, they would
be liable to pay for the costs of removal.
Welfare Fraud Sentencing
The question of sentencing in welfare fraud cases was discussed by the Court of Appeal in R v Berry,
MC23/07. In that case, Berry lodged false documents over a long period of time and obtained the
sum of $56,173.80 to which he was not entitled. He was sentenced in the County Court to 3 years’
imprisonment with 2 years’ immediate custody. In stating that in the circumstances Berry was
correctly sentenced to an actual term of imprisonment, the Court said that the sentence was
manifestly excessive. In lieu, the court imposed a sentence of 2 years and 4 months’ imprisonment to
be released on a recognisance after serving 218 days, that is, the time spent in custody awaiting the
result of the appeal.
Dealing with the case presented by the Prosecution
In Citipower Pty v Leahy, MC24/07, King J reminded magistrates that they should only deal with the
case which has been conducted before them. A magistrate is not permitted to reformulate the
prosecution case because to do so denies the defendant the opportunity of meeting the case
ultimately decided by the magistrate. Such an error is so fundamental that it goes to the root of
whether a proper trial between the parties has been conducted at all.
Adequate reasons for Decision
The decision of King J in Insurance Manufacturers of Australia v Villella, MC25/07 is a timely
reminder that magistrates should be careful about statements they might make during the hearing of
a case. In that case, the magistrate made some ill-judged remarks about the unreliability of hospital
records kept by medical practitioners and medical staff. The magistrate then went on to reject
evidence which had been given by medical practitioners saying that he was not “impressed” by the
evidence given by a general surgical Registrar at a large hospital. King J said that the magistrate did
not give adequate reasons for making his decision and further, that there has been scientific
research in recent years which casts doubt on the ability of judges (or anyone else) to tell truth from
falsehood accurately on the basis of appearances.
Cameras in Court
In R v Williams, MC26/07, King J dealt with an application to film court sentencing proceedings.
This is a useful decision on this point and puts the case for and against filming in court. In R v
Avent, Mr Justice Teague allowed cameras into court to film the sentencing process. However, King J
in Williams’ Case did not follow this decision and gave several cogent reasons why such a course
should not be followed in the case before her Honour.
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Applications to be again licensed
In Robinson v Nixon, MC27/07, Smith J held that when a magistrate is dealing with an application
by a person to be again licensed to drive a motor vehicle, the magistrate has a discretion as to
whether an alcohol interlock condition should be imposed. It would be desirable if the decision to
grant the application be made solely on the basis of the history of the individual since the offence
and whether it would be appropriate to make an order for the licence to be granted independently of
whether there are any devices or techniques which could monitor that individual’s behaviour while
driving with a licence and provide some protection to the community as a result. Approaching the
order for the grant of a licence independently of the consideration of the condition has the effect that
the magistrate will need to be persuaded that the particular applicant has demonstrated that the
risks and problems that existed at the time of the commission of the offence and the conviction have
been sufficiently addressed by the applicant. The question of whether an alcohol interlock condition
should be imposed is a matter to be taken up once the magistrate is satisfied that an order granting
the licence should be made.
Extradition Proceedings
In Berichon v Chief Commissioner, Victoria Police, MC27A/07, Mandie J held that where a magistrate
is dealing with an application for extradition pursuant to s83(8) of the Service and Execution of
Process Act 1992 (Cth) ('Act'), the magistrate is required to make one or other of the orders
contemplated by s83 of the Act. If the magistrate is satisfied that the warrant or a copy of the
warrant produced is not invalid, then the magistrate is required to remand the person on bail to
appear in the place of issue of the warrant or order that that person be taken in custody to that
place. The magistrate has no power to decline to make an extradition order on the ground of abuse of
process and the Supreme Court reviewing such an order has no wider power. The question of abuse
of process is a matter for the courts of the issuing State.
R v Lavelle (1995) 82 A Crim R 187;
Re Dalton (1995) 120 FLR 408; and
Rose v Chief Commissioner of Police MC09/2001; [2000] VSC 281, followed.
Loveridge v Commissioner of Police for South Australia (2004) 89 SASR 72, not followed.
Aggravating Factors in Sentencing
The Court of Appeal in R v Kolicic, MC28/07, restated the principle that in sentencing, defence
conduct is not to be treated as an aggravating factor. It is impermissible to increase what is a proper
sentence for the offence committed, in order to mark the court’s disapproval of the accused’s having
put the issue to proof.
Admissibility of Prior Inconsistent Statement
The question of admissibility of evidence was discussed in detail by Bell J in Engebretson v Bartlett,
MC29/07. Where evidence is put on an untenable basis and rejected, an appeal may be brought if
the evidence is admissible on an alternative basis. Excluding evidence in such circumstances can be
an error of law. One example of that principle is the case of evidence going to an issue being put on
one basis when it is only admissible on another. Accordingly, a magistrate was in error in not
admitting evidence which may have showed that the principal witness for the Prosecution may have
made a prior inconsistent statement.
Overloading and Privacy Principles
In C Cockerill & Sons (Vic) Pty Ltd v County Court of Victoria and Anor, MC30/07, the questions of
overloading and the Privacy Act provisions were considered by Mandie J. The prosecution sought to
prove that a prime mover and the attached semi trailer were overloaded on a number of occasions.
Part of the proof included the production of documents produced by the weighbridge operator. Also,
there was no proof that the defendant was the registered proprietor of the semi-trailer. Mandie J held
that the magistrate was not in error in finding the charges proved. The registration of the attached
semi-trailer was not an element of the offence that needed to be proved. It was sufficient to prove
that the defendant was the registered proprietor of the prime mover. The reference in the chargesheet to the registered number of the prime mover in the context of the language of the charges,
made it clear to the defendant that it was being charged in its capacity as the registered operator of
the specified registered prime mover that formed part of the allegedly overweight combination.
Accordingly, the court was not in error in convicting the defendant of the charges. In relation to the
submission that the documents contravened the provisions of the Privacy Principles, His Honour
held that assuming that the firm contravened the Commonwealth Privacy Act and/or the State
Privacy Act, or a least on the assumption that the informant acted unfairly, having regard to the
disclosure and use of the weighbridge tickets, it was open to the court in the exercise of its discretion
to admit the evidence of the tickets into evidence. In performing the balancing exercise as required by
R v Ireland (1970) 126 CLR 321 and Bunning v Cross (1978) 141 CLR 54, the court was correct in
taking into account that broader questions of high public policy existed in which the unfairness to
the defendant firm was only one factor. The court was right to consider that the defendant was a
body corporate which derived no protection from the privacy legislation, there was no unfairness to
the defendant and there was the strong countervailing consideration of the public importance of road
safety.
Senior Counsel in the Magistrates' Court
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More than 40 years ago Starke J in Day v Hunter, unrep, VSC, 31/5/1966 said it would be a very
rare occasion that the costs of senior counsel would be allowed in the Court of Petty Sessions. In
Nguyen v Oberoi Hotels Pty Ltd MC31/07 a magistrate determined that Oberoi Hotels Pty Ltd (OHP/L)
was justified in retaining senior counsel in relation to charges under the Accident Compensation Act
1985 alleging that a worker was summarily dismissed. The magistrate relied on several irrelevant
matters such as hearsay evidence in an email from OHP/L’s General Manager as to the
consequences of OHP/L being convicted of the charges and the necessity for counsel to have
expertise in employment and criminal law. However, Hansen J disagreed with the Magistrate's
finding saying that experienced and competent junior counsel could have run the case even though a
conviction for OHP/L could have had “serious negative implications” and the possibility of a negative
impact on the sale of the business. In those circumstances, it was not open to the magistrate to
conclude that the test for allowing the fees to senior counsel was satisfied.
Re-opening the Prosecution case
In Burridge v Tonkin MC32/07, the question of re-opening the Prosecution case was raised. Williams
J held that a magistrate has a discretion in relation to an application to re-open the prosecution
case. However, the prosecution may call evidence at that stage only if the circumstances are very
special or exceptional and, generally speaking, not if the occasion for calling the further evidence
ought reasonably to have been foreseen.
R v Chin (1984-5) 157 CLR 671, applied.
In granting an application to re-open the prosecution case, factors which were relevant to the
magistrate's determination were the late service of the s58(2) notice and the fact that the operator
was absent from the court when the application for abridgment of time of service of the notice was
allowed. Also, it was relevant that the notice did not on its face draw the prosecutor's attention to the
challenge to the operator's authority and further that it was difficult to point to any resultant
unfairness to the defendant in granting the application.
Company's liability for regulatory offences
The Court of Appeal (Maxwell P, Chernov and Neave JJ A) recently had the occasion in ABC
Developmental Learning Centres Pty Ltd v Wallace MC33/07 to consider whether the company may
be liable for offences under the Children’s Services Act 1996 (‘Act’). In that case, a child aged nearly
three got out of the Learning Centre while the staff were not looking. Subsequently, charges were laid
against the company alleging that it failed to take reasonable precautions to protect the child from
hazards and failing to adequately supervise the child. The Court said that the duties imposed by
s27(1) of the Act on the proprietor and on a staff member are both directed at ensuring adequate
supervision, but their scope is different. The proprietor's duty is to ensure adequate supervision of all
children at all relevant times. The staff member's duty extends only to a child in the care of that staff
member. The duty under s27(1) of the Act has all the same characteristics as the duty under s21 of
the Occupational Health and Safety Act 2004 ('OHS Act'). A breach of s27 does not require proof of
mens rea. The offences are committed by the objective failure of the person to meet the specified
standard whether the failure was deliberate or inadvertent. Under s27(1), the proprietor has a duty
to ensure – that is, make certain – that a certain state of affairs exists viz adequate supervision of all
children. Like s21(1) of the OHS Act, s27(1) is framed to achieve a result. Unless there is adequate
supervision, the company is in breach. Liability under the section does not depend upon any failure
by the company itself, meaning by those persons who “embody the company”. If it is proved that
there was not adequate supervision, it is immaterial where in the organisation the failure occurred. It
will be a question of fact in each case whether there has been a failure to ensure adequate
supervision. In practice, the supervision of children at a children’s service will be wholly or very
largely the responsibility of the staff of the service, rather than of management. Whether a lapse in
supervision by a staff member will or will not constitute a failure by the proprietor to ensure
adequate supervision will depend on the court’s view of what the proprietor’s duty required in the
circumstances. No issue of that kind arose in the present case, since ABC conceded that there had
not been adequate supervision. Accordingly, it was open to the judge to conclude that the failure of
the staff members to ensure adequate supervision was attributable to ABC as proprietor.
"in connection with the driving of a motor vehicle"
A question that crops up occasionally is whether a person charged with an offence has committed it
in connection with the driving of a motor vehicle. In R v Novakovic MC34/07 the Court of Appeal
(Nettle, Ashley and Redlich JJ A) dealt with a defendant who was found guilty of offences which
included robbery of a motor vehicle and then driving it away. The Court held that despite the
potential breadth of the phrase "in connection with" in s28(1) of the Road Safety Act ('Act'), there
must be a substantial relation between the other offence and the driving of a motor vehicle in order
that the additional punishment of the driver licence cancellation may be imposed. In the present
case, the circumstances of taking the vehicle and driving it away unarguably met the substantial
connection test. Murdoch v Simmonds [1971] VR 887, followed; Rochow v Pupavac [1989] VR 73, not
followed. In determining the question of making an order disqualifying the defendant from obtaining
a driver licence, the Court said that a s28(1)(b) order has an intended punitive element and there
may be many cases where a period of disqualification would exceed the period of imprisonment. In
the present case, however, having regard to the defendant’s ability to rehabilitate, the relatively
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lengthy period of parole and his particular need for use of a vehicle in order to effectively resume
work after his release, a disqualification period of two years would aid his rehabilitation.
"On the cards" test – whether appropriate to apply
In DPP v Selway (Reasons for Ruling No 2) MC35/07, Cummins J took the opportunity to state that
the “on the cards” test is no longer appropriate. His Honour said frequently it has been said that the
test to be applied for the order of production or refusal of material in respect of which a claim of
public interest immunity is made is whether it is “on the cards” that the sought-for material would
materially assist the defence. Although that expression has judicial authority it is unhelpful and
should not be used. Metaphor illumines; it does not define. The test is whether it is reasonably
possible that the sought-for material would materially assist the defence. Legal definition should not
be measured by the company one keeps when fishing or playing cards. On the basis of the
authorities, the true test is whether there is a reasonable possibility that the sought-for information
would materially assist the defence. Probability is too high a standard. Mere possibility is too low.
The adverb “reasonably” gives proper scope to the judge to determine the issue responsibly and
objectively. Such a standard also is consonant with the principles of open justice. In ACC v Brereton
MC36/07 Smith J was considering an application to set aside a sub-poena which had been issued by
a person charged with a criminal offence. His Honour said that there is a number of cases in which
the test to be applied, including the often quoted so-called “on the cards” test, is considered. That
phrase and other phrases used by judges are attempts to state ways in which the ultimate question
might be approached in a particular case. The ultimate question, however, is whether there is a
legitimate forensic purpose which the subpoena will serve. It is necessary to consider, among other
things, the importance of the issue to which it is said the subpoena relates and the importance of the
document in question in the determination of that issue.
Bunning v Cross revisited
In DPP v Riley MC37/07, Hansen J discussed the well-known principles laid down in Bunning v
Cross and other cases. His Honour said that a magistrate has a discretion to exclude evidence on the
grounds of public policy. The discretion is enlivened only where the impugned conduct was the
means by which the evidence was obtained or where the obtaining of the evidence involved such
conduct. In Riley's case, the critical question was whether the evidence of the unlawful or improper
conduct of the police was the means by which the evidence was obtained or where the obtaining of
the evidence involved such conduct. The public policy discretion requires a balancing of competing
factors in the sense of examining the comparative seriousness of the offence charged and the
unlawful or improper conduct of the police. By failing to engage in such a balancing exercise, and
failing to exercise the discretion by reference to relevant criteria, the magistrate's discretion
miscarried. Bunning v Cross (1978) 141 CLR 54, and DPP v Moore (2004) 39 MVR 323; [2003] VSCA
90; MC20/03, applied.
Corporation in liquidation can make claim
In Bella Fresh Pty Ltd (in liq.) v Petrac and Anor MC37A/07, Robson J heard an appeal against a
magistrate’s finding that a company in liquidation could not make a claim to money without first
obtaining leave of the Court pursuant to s471B of the Corporations Act 2001 (Cth). The claim
involved the sum of $25000 which was in the possession of a police officer. As the officer had formed
the view that the money was no longer entitled to remain in his possession, the officer made an
application pursuant to s125 of the Police Regulation Act 1958 to the Magistrates’ Court for an order
as to whom the money should be delivered. In granting the appeal and quashing the magistrate’s
decision, Robson J said that the company was not obliged to seek leave before making a claim to the
money. S471B did not apply to the police officer’s application and did not impede the action of the
liquidator in getting any assets of the company.
The self-represented litigant
In Tomasevic v Travaglini & Anor MC38/07, Bell J had some pertinent comments to make about the
self-represented litigant. His Honour stated that a judicial officer has a fundamental duty to ensure a
fair trial by giving due assistance to a self-represented litigant, whilst at the same time maintaining
the reality and appearance of judicial neutrality. The duty is inherent in the rule of law and the
judicial process. The human rights of equality before the law and access to justice specified in the
International Covenant on Civil and Political Rights are relevant to its proper performance. The
assistance to be given depends on the particular litigant and the nature of the case, but can include
information about the relevant legal and procedural issues. Fairness and balance are the
touchstones. Where a judicial officer conducted a short hearing in which the informant’s counsel was
called on to say very little, the judge did not explain to the self-represented applicant the procedures
that would be followed or the legal requirements that he had to satisfy, nor assist him to present his
case nor mention exceptional circumstances or prejudice to the informant’s case and the judicial
officer rejected the application on the basis that the delay had been too great, the judge failed to
properly perform his duty to ensure a fair hearing of the application and was in breach of the rules of
natural justice.
Forfeiture of bail orders
The Court of Appeal (Maxwell P, Vincent and Ashley JJ A) in Renate Mokbel v DPP (Vic and Cth)
MC39/07 rejected an appeal by Renate Mokbel against the forfeiture of bail order made by Gillard J.
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The order was made due to the fact that Tony Mokbel failed to answer his bail on charges before the
Supreme Court. It was submitted that Gillard J should not have presided over the subsequent
application by Renate Mokbel for rescission of the forfeiture order. In rejecting the appeal, the Court
said that where a judge has made an order forfeiting bail pursuant to s6(1) of the Crown Proceedings
Act 1958, and an application for rescission or variation is later made, there is no reason in principle
why the same judge should withdraw from hearing the application. This practice has much to
commend it because the judge making the forfeiture order does so with knowledge of the background
of the trial and the circumstances of the non-attendance of the bailed person. Re Condon [1973] VR
427, followed. Further, Gillard J’s finding that Renate Mokbel was not a genuine surety in that she
had no entitlement to the property which was put up as security, was clearly open in the
circumstances and Gillard J was not in error in refusing the application to rescind the forfeiture
order.
Hire Purchase Agreement – goods repossessed – value of the goods
In Nathan v Esanda Finance Corp MC40/07, Harper J considered the question of the consequences
following the default by the hirer and the termination of the hire purchase agreement. His Honour
held:
1. Where pursuant to a hire purchase agreement a hirer was in default of instalments and a Notice of
Termination was served on the hirer, a formal assessment of the value of the goods should be made
and a determination made whether there was a contractual basis for making an allowance or
adjustment for their value in calculating the amount owing by the hirer.
2. Given that the person must take into account the value of goods repossessed or capable of being
repossessed, it is for that person to introduce evidence that prima facie establishes what the value is
if it appears that the goods are capable of repossession. If the goods are so capable, in those
circumstances it is incumbent upon that person to introduce evidence as to their value. Once that
evidence is introduced then, if the hirer seeks to contradict it, the hirer would have the evidentiary
burden of negating the prima facie position. The hirer could not simply sit back without any evidence
and impugn the value put forward by the person repossessing once that person gave evidence that
had the prima facie point.
Fair Trading aspects
In Euginia v Chong MC41/07, Bell J heard an appeal against a magistrate’s order dismissing a claim
based on misleading or deceptive representation and s10A of the Fair Trading Act 1985 (‘Act’). His
Honour stated that whether a representation is misleading or deceptive is a question of law that has
to be answered by reference to the words spoken in their individual context. It is common ground
that that question has to be considered from the point of view of the objective impact of the words, in
that context, on a reasonable person in the position of the parties. Accordingly, where a reasonable
person of business in the position of the parties would have understood a person's representation
that he would use his best endeavours to ensure that the tenant paid the rent on time, the
magistrate was not in error in deciding that the representation was not misleading or deceptive.
In relation to Section 10A(1) of the Act, His Honour said that it provides that a representation with
respect to a future matter (including the doing of an act) is taken to be misleading if the person does
not have reasonable grounds for making it. Under s10A(2), unless the person has adduced evidence
to the contrary, he or she will be deemed not to have had reasonable grounds for making the
representation. Accordingly, where a person represented he would use his best endeavours to
persuade and assist his brother to pay the rent on time, this was a representation to use those
endeavours in the future which was a representation as to that future matter. Therefore, the person
had to prove he had reasonable grounds for the representation made. In view of the fact that rent
had been paid for many years before the default and that the person making the representation was
in regular contact with the tenant and had considerable involvement in his financial affairs, it was
open to the magistrate to find that the person making the representation had satisfied the onus of
adducing evidence of reasonable grounds for making the representation.
Travel Agent and the law of contract
In Imaje v Taylor MC42/07, Bell J heard an appeal against a magistrate’s order dismissing a claim by
a travel agency for reimbursement for the provision of airline tickets to a traveller. When the traveller
requested the tickets, he paid for them by credit card. After the tickets were supplied but before the
date of travel, the airline (Ansett) collapsed financially. Whereupon the traveller requested the bank
to reverse the credit card transaction. Subsequently, the travel agent sued the traveller but was
unsuccessful before the magistrate. In allowing the appeal, Bell J stated that an agent (the travel
agent) is entitled to be indemnified by the principal (the traveller); however, the agent is not so
entitled (or to a handling charge) where the consideration flowing to the principal has totally failed.
As the travel agent was contracted by a traveller to obtain return airline tickets for specified travel
and it did exactly that, it represented full performance of the travel agent's contractual obligations.
Once the tickets were issued, the traveller was in a passenger-carrier relationship with the airline
operator. It did not destroy the consideration that had already passed from the travel agent to the
traveller under the agency contract. Accordingly, the magistrate was in error in dismissing the travel
agent's claim.
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Drink/driving - Certificate signed by registered medical practitioner
In Stone v McIntyre MC43/07, Forrest J dealt with an appeal against a conviction of the defendant on
a drink/driving charge. As a result of the defendant being involved in a motor vehicle accident, she
was conveyed to a hospital where a blood sample was taken from her. At the subsequent hearing of
the charge, the certificate under s57(3) of the Road Safety Act 1986 (‘Act’) was admitted into
evidence. However, it disclosed that the person who signed the certificate was “A registered medical
practitioner or approved health professional”. Only a doctor can take a blood sample. It was
submitted that there was not sufficient evidence for the magistrate to find that a registered medical
practitioner took the sample of blood. In rejecting the appeal, Forrest J said that it is a necessary
part of the proofs for the prosecution of a charge under s49(1)(g) of the Act to establish that a doctor
has taken a sample of the driver's blood pursuant to s56 of the Act. In relation to the certificate, His
Honour said that where a driver involved in a motor vehicle accident had been conveyed to hospital
and had a sample of blood taken, it can be presumed that the person taking the sample was a doctor
who complied with all statutory requirements. Further, the letters 'MRCS' appearing in the certificate
after the printed word "qualifications" mean that a court can readily infer that the initials translate to
'Member of the Royal College of Surgeons' and accordingly, such a person was a registered medical
practitioner within the meaning of the Act. In those circumstances there was evidence upon which
the magistrate was entitled to conclude that a doctor had in fact taken the blood sample pursuant to
s56 and to find a charge under s49 of the Act proved.
Disposing of seized property
In Guss v Jacotine MC44/07, Hargrave J dealt with an appeal from a magistrate whereby the
defendants were found guilty of disposing of property which had been seized by the Sheriff under a
Warrant to Seize. As the size of the property was too large to be removed, the Sheriff left a notice to
the effect that the property had been seized. Some time after this, the defendants (Guss) sold their
interest in the property to another person. Hargrave J said that the scheme of sub-sections 111(7A)
and (7B) of the Magistrates’ Court Act 1989 (‘Act’) is to prevent any person, on notice of a seizure of
property, from dealing with the seized property without the consent of the sheriff or other person
executing the warrant. This prohibition serves to protect the interest of the judgment creditor in
having the judgment debt satisfied out of the proceeds of a sale of the seized property. The words
used in s111(7B) are unambiguous. The sub-section applies to: “A person who knows that the
property has been seized under a warrant to seize property ...”. These words focus upon the fact of
seizure under a warrant; not whether that seizure was valid or unimpeachable. Further, the
prohibition is not limited to the judgment debtor. It applies to any person who knows of the seizure.
S111(7B) of the Act should be construed to give effect to its underlying purpose or object. That
purpose is evident from the provisions of s111(7A) and s111(7B) when read together, the existence of
the interpleader procedure contained in r27.05 of the Magistrates’ Court Civil Procedure Rules 1999
and commonsense. Parliament has unambiguously prohibited all dispositions of seized goods
without the consent of the sheriff. The word "dispose" is of wide import and certainly includes a sale
or transfer of the legal title to seized property. By selling its legal interest in the property to the
purchaser, the defendants disposed of the property within the meaning of s111(7B) of the Act. There
is no dispute that each of the defendants aided, abetted, counselled or procured the disposition of
the property which was effected by the sale agreement. In those circumstances, the appellants were
rightly charged as principal offenders and convicted of a contravention of s111(7B) of the Act.
Terms of a contractual relationship
Moraghan & Anor v Cospak Pty Ltd MC45/07 was a case of determining the terms of a commercial
relationship between the parties. CP/L supplied wine bottles to M. a wine producer. However, the
bottles supplied were only suitable for sparkling wine not table wine. When the bottles were filled
with table wine, the corks did not provide an adequate seal. As a result, some of the wine was
spoiled. The parties met to discuss the problem but no firm agreement was obtained. Lasry J dealt
with an appeal from the magistrate’s decision finding on the claim by the supplier of the wine bottles.
Lasry J found that the evidence before the magistrate by objective standards of the subsequent
discussions did not indicate that the parties had reached an agreement which they intended to be
enforceable. Accordingly, it was open to the magistrate to conclude that whatever occurred in the
subsequent discussions, the parties did not make an agreement at that stage by which they all
accepted they were bound. In relation to the terms and conditions attached to the initial credit
application, the question was whether the bottles delivered were suitable for storage of table wine.
The evidence which was given before the magistrate demonstrated that there was an obligation on
CP/L to deliver table wine bottles and/or bottles fit for the purpose of storing table wine. In coming
to a different conclusion, the magistrate fell into error. In relation to the question of costs, where a
court is involved in determining the commercial relationship between parties and GST is part of that
commercial relationship, then GST should be included in the order. However, GST is not recoverable
where a claim is in the nature of damages rather than the supply of goods and services.
Security for costs - self-executing order
In Todarello Consolidated Investments Pty Ltd v Finch & Magistrates’ Court of Victoria MC46/07, Lasry
J dealt with an appeal from a magistrate’s order making a self-executing order on an application for
security for costs. When the respondent to the application failed to provide the security within the
time allowed, the self-executing order took effect thereby dismissing the respondent’s claim. Lasry J
stated that before the magistrate could make an order dismissing the action, he was obliged to
exercise the discretion required by Rule 31.04 of the Magistrates Court Civil Procedure Rules 1999.
This Rule provides that where a plaintiff fails to give the security required by an order, the Court may
dismiss the plaintiff's claim. The use of the word "may" in the Rule means that there is a discretion to
be exercised as to whether the action should be brought to an end by being dismissed. In the
circumstances, the magistrate exceeded his jurisdiction by making an order under Rule 31.04 at a
time when the conditions necessary to the exercise of his discretion had not yet been satisfied.
Further, although the magistrate gave no reasons, the reasons for making the order were obvious
from the surrounding circumstances.