CASE SUMMARIES 20151 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.

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.

2 Sentencing – Guideline Judgment for Community Correction OrdersIn 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 community-based 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 re-offending, 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.

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.

3 Occupational Health and Safety – validity of chargesIn 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 charge-sheet 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.

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.

4 Speeding charge – informant’s statement defective in a particularIn 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.

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.

5 Costs in a civil proceeding – Calderbank offers discussedIn 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.

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.

6 Sentencing – CCO ordersIn 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 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.

7 Children’s Court dealing with serious offenceIn 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.

8 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.

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.

9 Costs – denial of procedural fairness in disallowing certain items for costsIn 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.

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.

10 Drink/driving: proof of breath test instrument by CertificateIn 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.

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.

11 Indictable offence – defendant applied for a committal hearing in advance of a summary hearingIn 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.

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.

12 Application for a proposed Pseudonym OrderIn 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.

13 Drink/driving charge lacked detail insofar as provisions of ActIn 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 sub-sections 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 sub-sections 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.

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.

14 Application by media for copy of the Record of InterviewIn 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.

5. Having weighed up the countervailing arguments in this case, the ROI should not be released to Nine Network. The application was refused.

15 A defendant’s application to withdraw a guilty plea was refusedIn 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.

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.

16 Contempt of court – defendant used Facebook and the internet to intimidate CourtIn 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.

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.

17 Whether an award for damages should be GST-ExclusiveIn 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.

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.

18 Sentencing – lesser non-parole period imposed by CourtIn 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. 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.

19 Civil proceedings - Discovery obligations discussed in detailIn 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.

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.

20 Speeding charge – adequacy of reasons in finding charge provedIn 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.

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.

21 Bail application – whether accused represented an unacceptable riskIn 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.

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.

22 Sentencing – co-offences – parity explainedIn 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.

6. Accordingly, there was no error in the way the judge dealt with the parity question, nor in the sentence imposed on the appellant.

23 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.

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.

24 Procedure – certain documents not provided to accused at time of arrestIn 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 appeal-HELD: 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.

5. Accordingly, G.'s challenges to the Magistrate's decision failed.25 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 self-represented 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.

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.

26 Traffic offence – camera evidence – whether defendant entitled to access camera manual and service recordsIn 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.

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.

27 Theft – whether accused had an intention to permanently deprive customersIn 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 appeal-HELD: 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).

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.

28 Sentencing – judge appeared to sentence accused on basis that he would be granted parole at or shortly after the expiration of his non-parole periodIn 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 appealHELD: 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.

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.

29 Local Government – Public Health – nuisance caused – improvement notices issuedIn 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 fairnessIn 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 re-hearing.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 self-represented litigants, this may involve the provision of assistance by the Magistrate to the self-represented 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 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.

31 Judicial discretion to admit or exclude evidenceIn 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, non-confessional 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.

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".

32 Speeding charge – Certificates tendered – evidence givenIn Agar v McCabe and Anor MC 32/2015, the defendant appealed against a Magistrate’s decision finding a speeding charge proved. Upon appeal-HELD: 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.

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.

33 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 meeting-convening duty was conferred.

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.

34 Search warrants – jurisdiction of Magistrate to order return of seized propertyIn 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 appeal-HELD: 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.

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.

35 Sentencing – combination of imprisonment and Community Corrections Order to be consideredIn 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.

3. A sentence which ensured that psychological treatment, and, if appropriate, offence-specific 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.

36 Bail – exceptional circumstancesIn 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.

5. Accordingly, the application for bail was refused.37 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.

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.

38 Summons issued requiring documents to be produced set asideIn 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).

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.

39 Motor vehicle collision – different evidence from witnessesIn 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 appeal-HELD: 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.

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.

40 Costs order on setting aside summons for production of documentsIn 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.HELD: 1. The only error made by the Magistrate was to approach the exercise of the costs 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 referred to, there was a clear public interest in this debate over the costs of the subpoena ending here and now.

41 Driving under the influence of alcohol – not triflingIn 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 appeal-HELD: 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; andCampbell 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.

42 Accident compensation – the only source of entitlementIn 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 appeal-HELD: 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.

6. Accordingly, the conclusion reached by the Magistrate was correct and the appeal was dismissed.

43 Sentencing in respect of illegal earthworks and vegetarian removalIn 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 appeal-HELD: 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.

5. In the circumstances, the appeal was dismissed. 44 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 appeal-HELD: 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.

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.

45 Application of principles of consistency and proportionality for costs in a civil proceedingIn 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 appeal-HELD: 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.

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.

46 Criminal charge laid – permanent stay of proceedings grantedIn 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 appeal-HELD: 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.