CASE SUMMARIES 20171 Bail – Human Rights – Application for bail by young Aboriginal person

In DPP v SE MC 01/2017, an application for bail was made by an Aboriginal person with an intellectual disability aged 17 years. A Magistrate refused bail and upon appeal -HELD: Appeal granted. Condition bail granted. 1. The considerations specified in s3B of the Bail Act 1977 in relation to children generally are closely connected with the considerations specified in s3A in relation to Aboriginal persons. In the case of an application for bail by an Aboriginal child, the purpose of the two provisions overlap and they must therefore be read and applied together. The Aboriginality of such an applicant will often need to be taken into account under s3A when considering the matters specified in s3B. In the present case, Aboriginal cultural issues were taken into account under s3A as regards the considerations specified in s3B(1)(b) because bail would facilitate, but continued remand would have frustrated, the intended contact with SE’s Aboriginal family in Queensland. That was a significant consideration because, on the evidence in the reports that were provided to the court, maintaining that contact was an important aspect of SE’s developing individual and group identity as a young Aboriginal and would contribute to SE’s rehabilitation.

2. As with s3A, s3B requires the specified considerations to be taken into account in relation to all determinations under the Bail Act in applications by children, but it does not mandate a particular outcome. Depending on the circumstances of the case, bail may be refused to a child-applicant who, for example, poses an unacceptable risk to community safety (s(4(2)(d)(i)) even after taking s3B into account.

3. In the present case, SE showed cause why detention in custody was not justified by a combination of factors. SE’s Aboriginality under s3A of the Bail Act and minority under s3B. SE was well-engaged with a range of support services, representatives of which were present in court and supported SE and the application for bail. While SE had engaged in recent offending, there had been compliance with a good-behaviour bond conditions for three months and SE was going well at school. Moreover, the prosecution did not establish that SE represented an unacceptable risk.

4. In this case, release of SE on bail would facilitate the planned contact in Queensland with SE’s Aboriginal family (see ss3A and 3B(b) and above) and SE’s education (see s3B(d)), both of which were likely to be important rehabilitative influences. Release on bail would ensure that SE’s living arrangements would be continued without disturbance (s3B(c)). This was a particularly important consideration because those responsible for SE’s care so advocated. Having regard to these and other considerations, including the nature of the offending, the risk of further offending could be acceptably managed by the imposition of appropriate conditions, including a curfew. SE therefore did not represent an unacceptable risk and was granted bail.

2 Use of Land without a planning permit – principle of legalityIn Kitanovski v Melton City Council and County Court of Victoria MC 02/2017, a landowner was charged with and found guilty of several offences involving the deposit of soil and other related materials without a planning permit. Upon appeal-HELD: Application for leave to appeal refused. 1. In relation to the issue whether the charges were invalid because they did not describe the offence in the words of the provision creating the offence, Keogh J rejected K.'s argument and held that the charges were valid for two reasons. The first reason was that the charges paraphrased s126(2)(b) of the P&E Act and clearly identified the particular clause of the Planning Scheme which they alleged had been contravened. The second reason was that it was necessary for the informant to include in the charges reference to the particular use said to be made of the land without a planning permit, even though that use was not one of the uses specifically identified in the Planning Scheme.

2. The offence for which K. was convicted was one that was known to law. The elements of that offence are: that the accused is the owner of particular land; that the land has been deployed for a use for which a planning permit is required; and that no planning permit was obtained for that use. The charge-sheet set out these three elements and specified that an offence was committed under s126(2) of the P&E Act. It complied with cl 3(2), and therefore cl 1(a), of sch 1 to the Criminal Procedure Act 2009 ('CPA'). The charge-sheet described the offence in the words of the provision creating it, namely, s126(2) of the P&E Act. As the innominate use provision did not create the offence, it was not necessary for the charge-sheet to refer to it. Indeed, it would have been confusing for the charge-sheet to set out the words of the innominate use provision, as those words — as distinct from the words in s126(2) — would not have given K. ‘reasonable information as to the nature of the charge’ against him,

as required by cl 1(b) of sch 1 to the CPA.3. The charge-sheet also complied with the common law requirements for a valid charge to which Keogh J referred, namely, that it contained the essential factual elements of the offence and the legal nature of the offence.

4. There was no doubt that the Planning Scheme prohibited the use of the land for the purpose of the deposit of soil and other related materials without a planning permit. As it was not in dispute that the land was deployed for that use without a planning permit, or that K. was the owner of the land, the County Court judge was correct to convict K. of six offences under s126(2) of the P&E Act and Keogh J was correct to dismiss the application for judicial review of those convictions.

3 Fire Services Property Levy – land use classificationIn Awad v Greater Bendigo City Council MC 03/2017, Awad had an order made against him to recover a fire services property levy imposed on land owned by Awad. The Magistrate made an order that Awad pay the levy plus interest and costs. Upon appeal-HELD: Appeal dismissed.1. A.'s submitted that the amount should have been calculated on the public benefit rate at $129.50 and that the Fire Services Property Levy ('FSPL') for 2014-2015 should have been calculated on the public benefit rate at $315, instead of at the commercial rate of $1085. As the proceeding before the Magistrate concerned only the 2013-2014 year, however, no dispute in relation to the FSPL for any subsequent year was before him and accordingly it could not be considered on this appeal.

2. Given that A.'s defence was based on the Australian Valuation Property Classification Code ('AVPCC') being incorrect, it was appropriate for the Magistrate to be satisfied that there had been no change to the AVPCC and so valuation as a result of the objection process that required a change to the amount outstanding. This was the only issue in relation to the AVPCC which the Magistrate could consider. He could not himself conduct an enquiry into what was the correct AVPCC, as that was the sole preserve of the objection process.

3. A.s did not show any error arising from their stated question of law, being that the wrong AVPCC was applied. This was not a question that the Magistrate could consider. It followed that the grounds that sought to amplify this question, which were set out in the second and third paragraphs under the heading Grounds of Appeal, also failed.

4 Bail application in relation to Family Violence Intervention OrderIn Re Application for Bail by Darryl Swain MC 04/2017, the defendant S. applied for bail in respect of seven charges and was refused bail by the Magistrate. Upon appeal-HELD: Appeal allowed and bail fixed with conditions. 1. The word ‘violence’ in s4(4)(ba) of the Bail Act 1977 (‘Act’) is used in a descriptive sense to indicate the manner in which an offence was allegedly committed, and not by reference to any particular statutory definition. So much is clear from the language and context of the provision as a whole, the use of the word ‘violence’ in subs (ba)(i) and (ii), in similar provisions within the Act, and from the amendment history of the provision.

2. Subsection (ba)(i) refers to ‘violence against any person’ [emphasis added]. There is no reason to read down subs (ba)(i) such that it is only confined to family members. To do so would be contrary to the express words of the provision.

3. Accordingly, S. was not required to show cause why bail should be granted and it was for the prosecution to establish unacceptable risk if bail was granted.

4. The strength of the prosecution case on the charges depended largely on the credibility of the affected family member ('AFM') which was questionable. The significant delay before the matter could be fixed for committal led to a realistic concern that the period of pre-trial detention without bail could have exceeded any sentence ultimately imposed.

5. Weight was also placed on the matters set out in s4(3) of the Act and regard was had to the evidence relevant to S.'s character, antecedents, associations, home environment and the background of S. This material was generally favourable, notwithstanding S.'s previous conviction for family violence-related offences.

6. Weight was also placed on S.'s significant business and financial obligations. It was noted that S. had a supportive network of friends and relatives and in the past had had a stable residence and work history. 7. Accordingly, in weighing all of the factors drawn from the evidence produced on the

bail application, although any perceived risks alluded to by the Crown may not have been entirely negated, the imposition of strict bail conditions, including non-association conditions, should have allowed any perceived risk to be appropriately managed.

5 Application for a DNS blood sample from accusedIn Marrogi v The Magistrates’ Court of Victoria & Anor MC 05/2017, an application was made by police for a Magistrate to authorise the carrying out of a compulsory DNA sample. During the application it was said that the accused had a previous order for a DNA sample made in 2005. The Magistrate made the order as sought. Upon appeal-HELD: Application to review the Magistrate's order dismissed.1. The Magistrate had to be satisfied on the balance of probabilities of the statutory criteria which were the preconditions to the making of the compulsory procedure order. Also, as the statute required that the Magistrate have ‘reasonable grounds to believe’ the preconditions contained in s464T(3)(f) of the Crimes Act 1958, facts must have existed which could have induced that state of mind in a reasonable person.

2. It was clear enough from a consideration of the Magistrate’s reasons that he did conclude in accordance with paragraph (h) that in all the circumstances, the making of the order was justified. The Magistrate expressly used the words of paragraph (h) in deciding the application. He applied the necessary statutory criteria. The satisfaction of the criteria contained in s464T(3) can be a substantial factor in favour of making a compulsory procedure order. The Magistrate took into account the arguments of the prosecutor as to why the order should be made and the contrary arguments advanced by M. The Magistrate considered the ‘cut off point argument’, but did not regard s464T(3) as containing such a limitation. He thereby exercised the power or discretion conferred upon him.

3. In relation to the application being made in 2005, rather than repeated applications being made over a short period of time, in this case there was a considerable interval between 2005 and 2016, with the second application being made in 2016 in respect of the event occurring in that year.

4. The Magistrate appeared to have noted that the compulsory procedure would duplicate evidence, but under s463T(3)(h), he was required to determine whether the making of an order was in all the circumstances justified and he determined that it was. Duplication of evidence is one possible characterisation of the effect of the order, but it might also be described as an order enabling the taking of a DNA sample at a point reasonably proximate to the date of the offence in issue, thereby avoiding sole reliance on a sample taken 11 years previously.

5. The fact that a previous sample existed and was not the subject of evidence of being compromised or unsatisfactory, did not by itself prevent a further compulsory procedure order being made. There was no ‘cut off’ point for such orders, and whether they should be made, depended inter alia on the circumstances of the case. The Magistrate considered that the circumstances justified the making of the order.

6. The Magistrate’s reasons were adequate and satisfied the statutory requirements of s464T(7) and stated the evidence on which he relied. The basis for the declaration sought by M. had not been established. No error of law or other relevant error on the face of the record had not been established.

6 Drink/driving – driver charged with failure to provide a sample of breath for analysisIn McGuinness v Heffernan MC 06/2017 a motor car driver was charged with refusing to provide a sample of breath for analysis. The driver’s defence was that he had a medical condition and had suffered injuries in an incident prior to the request. Also, the driver said that he wished to lead expert medical evidence. The driver was convicted. Upon appeal-HELD: Appeal dismissed.1. The Magistrate did not breach his obligation to give M. such information and advice as was necessary to ensure that he had a fair trial. M. informed the magistrate that he had not asked the doctor to give evidence because 'he's a very busy man'. Secondly, M. did not inform the Magistrate that his doctor would or could give evidence directly relevant to M.'s ability to comply with the requirement to give a breath sample. M. did not tell the Magistrate that he wished to lead evidence from his doctor that at the time he refused to provide a breath sample he was suffering an attack of asthma or bronchitis, or some other disease or injury, that prevented him providing a breath sample. In the circumstances, the Magistrate's duty to ensure a fair trial did not require that he inform M. that he could summons the doctor to give evidence and could apply for an adjournment of the trial for that purpose.

2. No miscarriage of justice would have occurred if the effect of the Magistrate's failure to raise the possibility of an adjournment did not deny M. a realistic opportunity of securing an acquittal. M. had not applied for leave to adduce the evidence that he said he was denied the opportunity to adduce. There was no evidence before the court of the evidence which M. said he was denied the opportunity of adducing. There was no basis for the court to find that a miscarriage of justice had occurred in the absence of such evidence.

3. Given the Magistrate's findings, in order for any medical evidence to provide a realistic prospect of acquittal it need to explain how M's injuries and ailments prevented him from providing a sample of breath at the police station, but did not prevent him from earlier providing a preliminary sample.

4. M. neither led evidence, nor made any submissions as to how those findings of the Magistrate might be overcome by the medical evidence which M. said he was denied the opportunity to adduce. Accordingly, there was no substantial miscarriage of justice and the appeal was dismissed.

7 Sentencing – former legal practitioner charged with three offences – conviction imposedIn Playford v Police MC 07/2017 a former legal practitioner was charged with three offences in relation to managing and keeping a brothel and dishonestly dealing with money. The Magistrate imposed a conviction and released to defendant on a good behaviour bond. Upon appeal-HELD: Appeal dismissed.1. The Magistrate focused on the thrust of the appellant’s submissions which went to the question of whether or not to record convictions. She gave quite extensive reasons. That not every submission made by the appellant was mentioned was of no great moment. There was no obligation for the Magistrate to mention every submission or every argument.

2. The structure of ss16 and 39 of the Sentencing Act (SA) implies an expectation that in the usual case a conviction will be recorded. The recording of a conviction constitutes an important part of the imposition of a penalty. It forms part of the deterrent effect of a sentence and marks the community’s condemnation of the offender for his conduct. In addition, the recording of a conviction acts as notification to potential employers and others who may have a valid reason for knowing the character of the offender.

3. Nevertheless, there will be cases where the likely impact of a conviction upon a person’s employment prospects will be out of proportion to the seriousness of the offending and where the totality of the circumstances of the offending and the offender will persuade a court that there is justification for departing from the usual course of recording a conviction.

MacGregor v Police (1995) 66 SASR 269 per Debelle J, applied.

4. Far from finding any error in the Magistrate’s disposition, her assessment that it would have been inappropriate to decline to record convictions was correct. It is to be noted that the first offence, managing and keeping a brothel, continued over a period of almost one year. The amount of money which police seized which was, according to the admitted facts of count two, obtained through the keeping and managing of a brothel, exceeded $8,500. In relation to count three, assisting in the management of a brothel, took place while the appellant was on bail for counts one and two. This was a separate incursion into crime committed by a man who had already been arrested for a similar offence, to which he ultimately pleaded guilty.

5. These offences were not explicable as spontaneous outbursts, or out of character losses of self-discipline, as is the case in many offences where a conviction is not recorded. They were planned and executed incursions into crime for the purpose of creating illicit profits.

6. Accordingly, the appeal was dismissed.8 Habeas Corpus – accused held in custody when not appropriate

In Stewart v Magistrates’ Court of Victoria & Chief Commissioner of Police MC 08/2017, the accused had been charged with unlicensed driving and was on bail for another charge. He had been remanded to appear at Court but was not transported and the Magistrate adjourned (but did not remand) the charge to a later date. When the accused was brought before another Magistrate on the same date, he was remanded in custody. Upon appeal-HELD: Order that accused be released from custody immediately.1. The remand warrant in relation to S. expired on the hearing of the charge before the Magistrate on 8 March 2017 when the Magistrate refused to make a further order in respect of the remand of S. At that time, there was no lawful basis upon which S. should have been held

in custody.

2. The actions of police in continuing to hold S. in custody after his hearing before the Magistrate was unlawful. It followed that the transport of S. by the police to the Melbourne Magistrates’ Court night court for the purposes of having the charge effectively re-heard was also unlawful.

3. Accordingly, pursuant to r57.03(1)(b) of the Supreme Court (General Civil Procedure) Rules 2015, it was ordered that S. be released from custody immediately pending the further hearing of his charges on 28 March 2017 in accordance with the orders made by the Magistrate on 8 March 2017.

9 Civil proceeding – production of invoice – costs – whether ‘party/party’ costs order can be madeIn BB Australia Pty Lt v Constanti MC 09/2017 a Magistrate refused to order a sum of money in relation to part of the plaintiff’s civil claim and in relation to the question of costs, made an order on a ‘party/party’ basis. Upon appealiHELD: Part of the Magistrate’s order dismissed and no power in Magistrate to order costs on a ‘party/party’ basis. Order that the appeal on the disallowance of the claim for $16,168.62 was dismissed. In relation to the costs order, it was set aside and ordered that the franchisees pay the franchisor's costs under rule 63.28(c) of the Magistrates’ Court General Civil Proceedings Rules 2010.1. The mere production of the invoice as to the claim for $16,168.62 was not proof. It was insufficient to simply produce the invoice for an invoice is nothing more than a claim to money. It was legally necessary for the franchisor to prove how and in what way the fee was calculated or made up. In order to do that there had to be evidence of the revenue on which the percentages were applied. An invoice is nothing more than a claim. It does not in and of itself prove anything. There was no evidence from the franchisor as to how the amounts owing were calculated. Now was there any evidence of the reported amounts of revenue, nor any other basis for determining what the revenue was.

2. The invoice was nothing more than a demand for payment and therefore did not prove a claim and there was no other extrinsic evidence from which the Magistrate could find proof of the claim. There was no other evidence at trial to prove or sustain the demand for payment. As the franchisor had the software containing reported data from the franchisee and had a finance department applying percentage rates to reported amounts, it was incumbent on the franchisor to properly adduce evidence about the underlying information.

3. In relation to costs in civil proceedings, the 'party/party' basis of taxation was revoked under the Rules in 2013 and replaced by a two-fold classification of 'the standard basis' and 'the indemnity basis' of taxation of costs.

4. The ‘standard’ basis of taxation is a reflection of what was previously known as solicitor/client basis, thus a more generous allowance than the ‘old’ party/party basis. The indemnity basis of taxation under the new Rules does not provide a complete indemnity but enables the court to allow an indemnity against all legal costs so long as the items claimed have not been unreasonably incurred or are not of an unreasonable amount. What remains is this proposition: an order for indemnity costs under the new rule does not mean payment of costs according to the costs agreement in place between a party and their lawyers. It means indemnity costs on scale. Therefore, if the intention is to order that costs be taxed on the basis of the costs agreement in place between a party and their lawyers, that needs to be justified as a matter of discretion and stated in the order for costs under rule 63.28(c) which speaks of ‘...such other basis as the court may direct’.

5. The parties in this commercial dealing over a long time conducted their affairs according to the agreement, and faithful to that, they should have been bound by the costs clause. If the clause gave a little more than standard costs (but less than indemnity) there was still a test of reasonableness. Adherence to the clause gave some measure of certainty. The ambit of the clause and the reasonableness of costs to be claimed were matters for the Costs Court.

6. Accordingly, the order in each case was that the franchisees pay the franchisor's costs under rule 63.28(c) of the Rules according to clause 20.13 and 20.14 of the Standard Franchise Agreement.

10 Resisting a member of the Police forceIn Kok v Lomax and County Court of Victoria MC 10/2017, the defendant argued that his conduct in resisting arrest was justified on the basis he was not going anywhere with the

police officer. He was found guilty of the charge. Upon appeal-HELD: Application for review dismissed.1. K. argued that his conduct in resisting arrest was justified on the basis of the holding in Mastwyk v DPP [2010] VSCA 111; (2010) 27 VR 92; (2000) 115 A Crim R 528 that a person is entitled to refuse to accompany a police officer for breath testing where the requirement is not reasonable, including as to the means of transportation proposed. K's evidence of his fear of being transported in the Divisional Van did not amount to raising a defence of self-defence (or ‘necessity’) such that the County Court judge was required to expressly consider such a defence and give reasons for rejecting it.

2. The County Court Judge found, in effect, that K. jumped to a conclusion about how he would be transported to the police station and did not inform Officer L. of his medical circumstances.

3. Based on his findings of fact, it was open to the County Court judge to find that the physical acts of K. in ‘blocking’ or pulling back were not a justified response to the situation that presented itself. In the absence of any discussion about where he would or should be seated in the police van, K.’s fear of injury was not reasonable and his actions in resisting arrest were not justified.

4. Accordingly, K's application for review was dismissed.11 Display of obscene figures in a public place

In Fraser v County Court of Victoria and Walker MC 11/2017, F. was charged with displaying obscene figures in a public place and found guilty. The question involved the meaning of ‘obscene’ and whether the provision in the Summary Offences Act 1966 did not burden in an inappropriate ways F.’s right to a political communication. Upon appeal-HELD: Appeal dismissed.1. F. did not dispute the findings that she was displaying obscene figures in a public place. She claimed to have been exercising her constitutional rights. The grounds for review invited the Court to rule on the validity of s17(1)(b) of the Act insofar as it prohibited the display of obscene figures in or near a public place.

2. Section 17(1)(b) of the Summary Offences Act, in prohibiting the display of obscene figures, may effectively burden political communication.

3. There is ample authority that while ‘obscene’ is related to ‘indecent’ and ‘offensive’, it is at the most serious end of the spectrum. Both its dictionary meaning and the relevant case law place ‘obscene’ at the highest end of what is disgusting, repugnant, repulsive or offensive, having regard to contemporary community standards. Section 17(1)(b) therefore prohibits the display in or near public places of images that are of the most seriously shocking type.

4. Having regard to the meaning of ‘obscene’, the County Court judge held that the purpose of the prohibition of the display of obscene figures in s17(1)(b) was to ‘prevent the display of figures of such horror or such a disgusting nature as to be inconsistent with good public order’. The parties did not challenge this description of the purpose of the relevant part of s17(1)(b). What was in issue was whether this purpose was legitimate, having regard to the constitutional requirements.

5. Obscenity upsets the order of a public place by interfering with the free use of that place by persons who have a right to use it without being subjected to things that are upsetting and distressing to them. In this way, the prohibition operates to prevent a form of public nuisance. The purpose of s17(1)(b) is to enable people — including children — to go about their business in public places without fear of unwitting exposure to images that, by contemporary standards, are at the highest end of disgusting, repugnant, repulsive or offensive.

6. The regulation of obscenity is a very familiar feature of the legal landscape in Australia. Section 17(1)(b) is directed to the legitimate end identified by the County Court judge — based on the rationale of ‘public order’ — and that there is nothing incompatible with representative government in prohibiting obscene displays in public. Representative government can proceed unimpeded while the prohibition on public obscenity remains in place.

7. Laws prohibiting the display of obscene images in public places have been with us for a very long time without, apparently, interfering with the system of representative

government that has been in place since federation. So have censorship or classification laws regulating the distribution of obscene material. The history and prevalence of such laws suggests that a law prohibiting the display of obscene images in public places is not incompatible with our system of representative government.

8. Accordingly, s17(1)(b), insofar as it prohibits the display of obscene figures, is compatible with the constitutionally mandated system of representative government and the implied freedom of political communication.

9. The prohibition of the display of obscene images in public places achieves an appropriate balance between freedom of political communication and the need to protect the public from unwitting and unwelcome exposure to images that are at the highest end of what is disgusting, repulsive, repugnant and offensive, having regard to contemporary standards.

10. The prohibition of the display of obscene figures in s17(1)(b) is not invalid as impermissibly burdening the implied freedom of political communication. The impugned law, insofar as it prohibits the display of obscene figures in public places, is appropriate and adapted to a legitimate purpose and is compatible with the constitutionally prescribed system of government.

11. The law as it applied to F's conduct was valid and F. had been found to have contravened the law by displaying obscene figures in a public place. It mattered not whether F. was engaged in communication on government or political matters when displaying the obscene images.

12. Accordingly, the application for review of the decision of the County Court was dismissed.

12 Applicant aged 17 at time of alleged offending but not charged until he turned 19In Baker v DPP and Others MC 12/2017, the question was whether the defendant’s loss of opportunity to be dealt with in the Children’s Court constituted a breach of Human Rights under the Charter.HELD: Appeal dismissed.1. The question that arose in this proceeding was whether the loss of the opportunity to be sentenced in the Children’s Court meant that the continuation of the prosecution of B. in the County Court would be so unfairly and unjustifiably oppressive as to constitute an abuse of process. To the extent that there was reliance upon alleged breaches of the Charter, those breaches, if made out, may have established, or assisted in establishing, the necessary oppression. Viewed within those limits there was no impermissible collateral review of prosecutorial discretion.

2. A person is ‘charged’ in the context of the right to be tried without unreasonable delay, as protected under human rights legislation, from the time the person is notified, by means of an official authorisation, that he or she is to be tried for allegedly criminal conduct. This interpretation achieves the objectives behind the proscription on unreasonable delay, particularly, the avoidance of oppressive pre-trial detention and the minimisation of trauma and anxiety.

3. Time begins to run, for the purpose of assessing whether delay is unreasonable under s25(2)(c) of the Charter, when a person is ‘charged’ with a criminal offence. Within this context, a person is ‘charged’ with a criminal offence when he or she is served with a summons to answer the charges laid or, if no summons has been issued, when he or she has been served with an arrest warrant.

4. The right of a person charged with a criminal offence to be tried without unreasonable delay was not engaged in the circumstances of this case. B.'s submission failed at the first stage of analysis ‘Has a Charter right been engaged?’. The interests which the right to be tried without unreasonable delay serves to protect had not been injured. There had been no pre-trial detention, the preparation of B.'s defence has not been prejudiced by the ten-month delay since he was charged and whatever anxiety and concern he may have experienced since being charged had not been aggravated by an inordinate delay.

5. B. submitted that being deprived of the opportunity of being dealt with by the Children’s Court amounted to a breach of his right to a fair hearing. He submitted that the jurisdiction of the Children’s Court was one focused upon the welfare and rehabilitation of an offender to the exclusion of principles of general deterrence.

6. The right to a fair hearing was clearly engaged here. However, there was nothing to suggest that B. would not receive a fair hearing from a competent, independent and impartial tribunal in the County Court.

7. There was not the stark contrast between the community-based sentencing disposition available in the County Court and that available in the Children’s Court for which B. contended. In particular, the proposition that a Community Correction Order ('CCO') was primarily punitive and a Youth Supervision Order was primarily rehabilitative was rejected. A CCO is designed to address the specific circumstances of the offender.

8. It is clear that the status of an offender as a young offender is substantively taken into account throughout the system of criminal punishment and is not confined to the processes of the Children’s Court. Moreover, the DPP accepted during the hearing of the appeal, that, in the circumstances of this case, a judge of the County Court in exercising the sentencing discretion, could look to the factors identified in s362 of the Children, Youth and Families Act 2005 and the prosecution could not be heard to oppose this.

9. The delay in the filing of charges, in ignorance of B.'s rights, and the continuation of the prosecution nonetheless, which resulted in the loss of opportunity for B. to be sentenced in the Children’s Court, had not limited or interfered with the right in a manner that was unreasonable. The limit, or interference, was not of a nature or extent that resulted in a breach of the Charter. B.'s youth, both at the time of the offending and at the time of sentence, would be a relevant consideration for the County Court to consider in arriving at its sentencing disposition. There are options for sentencing which are age-sensitive. The administrative management of the sentence imposed is governed by principles which seek to tailor programs to the individual circumstances, including the youth, of an offender. There is no incompatibility between the conduct of the DPP (in light of the earlier action, and inaction, by the police) and the right to the protection of B.'s best interests as a child at the time of the offending. There being no incompatibility, there was no breach of the obligation owed under s38 of the Charter.

10. The County Court judge did not err in finding that B. had not discharged the high onus of demonstrating that the court process will be unfair. There is considerable public interest in ensuring that someone accused of committing criminal offences is dealt with by a court and not given, in effect, an immunity from prosecution. The charges are serious and there is considerable public interest in bringing to trial those accused of sexual offences, including offences committed through the use of the internet, especially where the victim is herself a child.

11. Accordingly, leave was granted but the appeal dismissed and an order made that the proceeding in the County Court be expedited to ensure that, in the event that an order for confinement is made, B. will remain eligible for detention in a youth justice centre.

13 Suppression order sought in relation to evidence to be given by a witness who was a magistrateIn Rayney v The State of Western Australia [No 8] MC 13/2017 the defendant sought to have a suppression order made in relation to evidence to be given by his sister who was a Magistrate. HELD: Application to make the orders sought or any other suppression order refused.1. The application was grounded not on the basis of any adverse effect on the private or individual interests of the witness, nor on any question of embarrassment of the witness, but rather with respect to the public position and judicial functions of the witness, and the due administration of justice.

2. It was not contended that any of the witness's evidence (apart from her name and occupation), or her relationship to R., should be the subject of any suppression. Rather, as both the witness' affidavit and the letter from the Chief Magistrate made clear, it was the connection between the witness and her role as a magistrate that gave rise to the concerns of her ability to efficiently perform her functions in the administration of the law.

3. The previous publicity of the witness' name and image raised questions as to the utility of a suppression order, at least of any suppression of the witness' name. Although publication of her name may have caused some people who know her as a magistrate, or who might come before her in her role as a magistrate, to learn for the first time of her relationship to R., the extent of that risk was difficult to ascertain given the previous publicity she had received in connection with related matters and the many references to her in evidence given in the trial so far, and likely to be given in the course of the trial hereafter. In the circumstances, the

witness' name should not be suppressed.

4. The question was whether her role in the proper administration of justice might be unnecessarily disrupted by the publication of information which identified her role or enabled people to recognise her as the person performing the role of a magistrate in the regional area in which she worked. If that was so, then it was necessary to consider whether the public interest in avoiding that disruption outweighed either the public interest underlying the principle of open justice, or the public interest in the freedom of the press.

5. Whilst there was concern that litigants before the Magistrate should not be distracted by knowledge of her private life, the loss of privacy that inevitably flowed from giving evidence in open court did not provide a basis to interfere with the public interest in open justice and a free press. In the absence of any serious impediment to the witness' capacity to perform her function, the witness should not be treated any differently than other witnesses simply on the basis of her position and the fact that she was engaged in the administration of the law.

6. Whilst the principle of open justice is not absolute, the facts of this case did not provide a basis to interfere with the unfettered access of the public to information concerning the proceedings. In the circumstances, the orders sought on the application were not made, nor any other suppression order.

14 Sentencing – defendant not legally represented pleaded guiltyIn Bridges v Police MC 14/2017, the defendant pleaded guilty to a charge and a sentence of imprisonment was imposed. Upon appeal-HELD: Appeal allowed. Sentence imposed set aside. Matter remitted for resentencing by a different Magistrate.1. The magistrate erred by not informing B. of his right to dispute facts that were contested. Upon consideration of the sentencing remarks it is clear that B. disputed some of the circumstances surrounding the assault. The failure to offer B. the opportunity to dispute the facts which were contested was a failure to observe one of the principles identified in Cooling v Steel (1971) 2 SASR 249.

2. The Magistrate also erred in circumstances where B. was unrepresented, in failing to obtain information from him concerning his personal circumstances.

3. When an unrepresented defendant makes no submissions and imprisonment is a possibility, the Magistrate should question the defendant to see if there is a basis for a more merciful approach to sentencing. That questioning must include matters concerning the personal character and antecedents of the defendant and the impact upon the defendant of a sentence of imprisonment.

4. In this case the failure of the Magistrate to inform B. of his right to dispute or comment on the facts alleged by the prosecution, and the Magistrate’s failure to ascertain the relevant personal circumstances of B. who was unrepresented in circumstances where a sentence of imprisonment was in contemplation, both individually and collectively, constituted a miscarriage of the sentencing discretion.

5. The following matters were set out by Wells J in Cooling v Steel (1971) 2 SASR 249 as matters which should be observed in sentencing unrepresented defendants:1. Ensuring before a plea is taken that the defendant is informed of the offence with which he or she is charged;

2. The defendant is made to appreciate that the plea is a matter for his or her own independent decision but that the defendant is entitled to legal advice and representation and to a reasonable adjournment to obtain the same;

3. If the question of bail arises, the defendant is made aware of the right to apply for bail and the matters a court takes into account in relation to bail and the capacity to make submissions in support of such an application;

4. If the matter is to proceed, the defendant should be informed of the seriousness of the charge and of the penalties that may be imposed, especially where the court has power to disqualify from holding or obtaining a driver’s licence, or order compensation, or direct forfeiture of property or order imprisonment;

5. On a plea of guilty the defendant should be informed that he or she may put matters of

mitigation by submission or on oath and that he or she may call witnesses or produce other relevant material;

6. On a plea of guilty, before the prosecutor places the facts before the court, the defendant should be informed that he or she is entitled to dispute or comment on the facts, including prior convictions; 7. If facts are disputed, the defendant should be given the opportunity to support his or her version by sworn evidence and/or calling witnesses, or, if appropriate, consideration should be given to treating the defendant’s contention as to the facts as a plea of “not guilty”;

8. Special considerations apply to indigenous defendants and to persons with an inadequate grasp of the English language.

15 Workplace compensation – refer documents to Medical PanelIn Victorian WorkCover Authority v Nedelkovska and Anor MC 15/2017, two reports made by an occupational therapist were sought to be referred to a medical panel. The Magistrate refused to make the order. Upon appeal-HELD: Magistrate's decision quashed.1. The statutory power the magistrate was exercising was confined. It was limited to determining whether a document related to a medical question to be referred to the medical panel. If a document related to a medical question, absent any suggestion of abuse of process, the magistrate was bound to refer that document to the convenor of the medical panel. So much was clear from the word ‘must’ in the opening words of s304 in WIRCA and the words ‘relating to the medical question’ in sub-s (b).

2. The reports related to medical questions and, so, the magistrate was bound to refer them. Instead, the magistrate appeared to consider the weight of the evidence contained in the reports and whether such evidence might have been admissible in a court of law. The magistrate also appeared to be concerned with a question of fairness to N. arising from a limited ability to test the opinions being expressed in the reports or the factual basis on which they were based.

3. None of those considerations were matters that the magistrate was called upon by the legislation to take into account. Indeed, apart from s304 in substance excluding any such consideration, surrounding sections make it clear that the medical panel itself was not bound by rules or practices as to evidence, may inform itself on any matter relating to the reference in any manner it thinks fit, and may request further information it considers is required to enable it to form its medical opinion on the questions. Such provisions reinforced the irrelevance of the magistrate’s consideration of the matters identified for the task he was to perform. 3. Therefore, the magistrate misconstrued the statute and thereby misconceived the nature of the function which he was performing and in so doing he fell into jurisdictional error.

4. In exercising the power to send documents to a medical panel, a court (or other person) ought not pass the document through a filter for evidentiary weight, admissibility or other general fairness criteria. In the absence of some other factor being present, it would be odd if, upon judicial review of a decision refusing to send a document that related to the medical question, the same considerations would attract significant attention for the exercise of a discretion to grant relief.

16 WorkCover matter – whether Magistrate correct in hearing evidenceIn Victorian WorkCover Authority v BSA Ltd and Ors MC 16/2017, the Magistrate said that in order for him to decide if a person was a worker it was necessary for him to hear evidence from the applicant. Upon appeal-HELD: The course adopted by the Magistrate was correct. No error of law was shown.1. The construction of s71(4) of the Workplace Injury Rehabilitation and Compensation Act 2013 (’Act’) advanced by BSA and adopted by the Magistrate was correct. This construction was more consistent with fair and just decision-making and outcomes.

2. The jurisdiction given to the Magistrates’ Court includes the hearing and determination of ‘any question or matter’ arising under the Act out of any decision of the Authority or an employer, and extends to the resolution of all issues in the proceeding.

3. The correct approach to the interpretation of s71(4) of the Act was to apply the definitions of ‘employer’ and ‘worker’ as found in s3 of the Act to the language of that provision. This was the plain consequence of the statutory text and of an ordinary and grammatical reading of s71(4) and the applicable definitions.

4. The application of s71(4) was dependent on whether the claimant N. was a worker, and BSA an employer within the meaning of the Act. In the present case, this entailed consideration of the application of sch 1 cl 9 and in particular whether, in providing services to BSA, N. and his company were carrying on an independent trade or business.

5. As a result, it was essential for the Magistrate to hear evidence to determine whether N. and BSA met the definitions of ‘employer’ and ‘worker’ in s3 of the Act.

6. It was hard to see any justification for the very early intervention of the Supreme Court sought by the Authority, or any reason why the Magistrate should not have been permitted to hear evidence, complete the hearing, publish his reasons and make orders in the applications.

7. The course adopted by the Magistrate of proceeding to hear evidence as to the applicability of s71(4) of the Act was correct. There was no error of law shown by the Authority on the face of the record.

17 Bail – whether Magistrate should have refused bailIn DPP (Vic) v Johnstone MC 17/2017, the defendant was charged with very serious driving offences and was on two grants of police bail. The Magistrate granted bail with conditions. Upon appeal-HELD: Appeal dismissed.1. It was submitted that, given the evidence of the alleged offending, J.'s prior criminal history, his admitted drug use and the fact that he was on two sets of bail and two CCOs, the latter of which he was not complying with, the starting point was that there was obviously an unacceptable risk that, if granted bail, he would offend again, and in a serious way.

2. On the summary of facts, and without more, the only finding reasonably open would be that there was an unacceptable risk that, if granted bail, J. would commit a driving offence of a similar kind and thereby endanger the safety and welfare of the public. Having read the transcript of the hearing before the Magistrate, if that were the only evidence, it was expected that the Magistrate would have refused bail.

3. It was apparent from the transcript of the hearing, that, instead of reacting in a knee-jerk fashion to the bald summary given earlier, the Magistrate carefully listened to, tested and weighed the further evidence that came from the police officer, the CISP report and J.'s grandmother, as well as the possible effect of strict bail conditions. The Magistrate stood the matter down so that the CISP assessment could be done. Later, he stood the matter down again so that the police officer could make the necessary inquiries concerning the drug treatment condition on the CCOs.

4. While the Magistrate's reasons were not under challenge, they were rather impressive given the time pressures under which Magistrates operate, for they addressed all relevant considerations in a clear and balanced manner. It was also apparent that, while a range of factors contributed to the ultimate decision, the Magistrate would not have concluded that an “otherwise unacceptable risk [was] converted to an acceptable risk”, and would not have granted bail, absent the evidence of the grandmother. For it was the grandmother who provided the most important and compelling evidence concerning the changes in her grandson’s circumstances since his arrest and the regime of support and supervision that would be in place were he to be granted bail.

5. Thus, having regard to the principles set out in Beljajev [1991] VicSC 376, including the notion that there is imposed on an appellate court a severe restraint upon interference with orders made in matters of bail at first instance, as well as the fact that the Magistrate had the singular benefit of seeing and hearing the grandmother give evidence, it was open to the Magistrate, on the evidence before him and in light of the conditions and surety he proposed, to conclude that he was not satisfied that, if granted bail, there was an unacceptable risk that J. would commit a driving or other offence of a similar kind and thereby endanger the safety and welfare of the public.

6. Accordingly, the appeal against the Magistrate's decision was dismissed. 18 Civil proceedings – Certificates of Partnership – whether party had no standing to

sueIn L & H Group v White & Anor MC 18/2017, certificates of partnership were produced but the Magistrate dismissed the complaint on the ground that the plaintiff had no standing to sue. Upon appeal-HELD: Appeal allowed. Dismissal set aside.1. The issue in this case was whether the Magistrate erred in his construction of s58(4)

of the Partnership Act, by impliedly finding that, if there is some evidence before a court which suggests that the information in a certificate is not accurate, however slim, the onus falls upon the party seeking to rely upon the s58 certificate to prove the accuracy of the matters in the certificate.

2. Having regard to the plain language of s58(4) of the Partnership Act, and the deeming provision in s78 of the Partnership Act, that cannot be correct: the reference to ‘unless the contrary is established’ requires that the onus instead lies upon the party seeking to prove that the information in the certificate is not correct. Such a conclusion is supported by the existence of rule 17.02 of the Magistrates' Court General Civil Procedure Rules 2010, which provides a mechanism by which another party in litigation can require a firm of partners to disclose the names of partners.

3. If Mr Young sought to press his submissions that L & H Group in the proceeding was a different partnership than the partnership that was the party to the agreement and the guarantee, he would have had to apply for an adjournment, seek discovery from L & H Group, and lead evidence to establish the true identity of the partners of the partnership, and, further, if there was a change in the composition of the group partnership, establish that this disentitled L & H Group from the relief it sought in the proceeding.

4. That did not occur in the current case. In his reasons, the Magistrate seemed to assume that, once a doubt had been raised, it was incumbent upon L & H Group to prove that the information in the s58 certificates was correct, and that the limited partnership bringing the proceeding was the same limited partnership which was a party to the agreement and the guarantee.

5. Furthermore, the Magistrate seemed to assume that there must have been a change in the entities constituting the limited partnership between the issue of the certificates and the execution of the agreement and the guarantee, and again, it was incumbent upon L & H Group to prove that any change in the composition of the limited partnership was effected in accordance with part 3 of the Partnership Act. This was not the proper construction and application of s58 of the Partnership Act.

6. Accordingly, the appeal by L & H Group was allowed, the dismissal set aside and orders made in the terms sought by L & H Group.

19 Exceeding speed limit offences In Pawlak v Police MC 19/2017, the Magistrate found one charge proved and when the defendant failed to attend Court later, the three other charges were found proved. Upon appeal-HELD: Appeal dismissed.1. The argument that the Magistrates' Court is not a court of competent jurisdiction seemed to be presently a popular ground among unrepresented defendants. Parker J recently rejected a similar argument: Millington v Police [2015] SASC 52. The Magistrates' Court, constituted of one Magistrate, has jurisdiction to hear and determine matters such as these charges under the Magistrates Court Act 1991 (SA).

2. The nature of a pre-trial conference was considered by Bleby J in Police v Childs [2000] SASC 111; (2000) 76 SASR 425. His Honour observed that an officer conducting a pre-trial conference pursuant to rule 26 is not exercising judicial power. Its purpose is purely procedural. The conference is conducted with the aim of enhancing case flow management. The public does not have a right to be present. It is not intended that orders disposing of proceedings should be made during the course of such a conference. At [16] Bleby J noted that, if in the course of a pre-trial conference it was determined that the matter was resolved and a plea could be taken, the Magistrate should announce that the matter would now proceed in open court. In other words, the transition from conference to hearing needed to be made clear.

3. The clear implication from the Magistrate’s decision to proceed ex parte was that the planned pre-trial conference was abandoned and the Magistrate convened the Court – an open court – to sit as a Magistrate and to the hear the charges. There was no impediment to his Honour doing so.

4. The appeal against conviction on the three charges was dismissed.20 Taxes and Duties charges – failing to lodge GST and Income Tax returns

In Pullman v Australian Taxation Office MC 20/2017, a defendant was found guilty of 34 offences in relation to GST and taxation returns and was fined a total of $25,000. Upon

appeal-HELD: Appeal allowed. The order of the Magistrate set aside and P. ordered to pay one fine of $8,000.1. The sentence imposed by the Magistrate was manifestly excessive in all of the circumstances.

2. The Magistrate did not have proper regard to the provisions of s16C of the Crimes Act.21 Family Violence – Firearms condition

In Swebbs v Magistrates’ Court of Victoria & Anor MC 21/2017 S. consented to a familty violence intervention order without it containing a firearms prohibition. However, upon making of the order, S. became a prohibited person under the Firearms Act 1996. S.’s application to be deemed not to be a prohibited person was rejected by a Magistrate. Upon appeal-HELD: Magistrate’s decision quashed.1. Section 189 of the Act both gives the right to an otherwise prohibited person to apply for a deeming declaration and gives the Court the discretion to determine whether to make that declaration.

2. The Magistrate erred in exercising the discretion conferred by s189 to determine S.'s application. He wrongly considered that the application was incompetent because it was made during the term of the intervention order.

3. The Magistrates’ Court can exercise the discretion conferred by s189 during the currency of the intervention order provided that it is an intervention order without a firearms condition as was the case here. The Magistrate erred in deciding that no application under s189 could be made during the currency of the intervention order.

3. Nettle J’s description of the purpose of the section should have been used by the Magistrate as a guide to the proper exercise of discretion conferred by s189. It should be so used by the Magistrate who rehears the application. In the nature of the exercise of a discretion, it will be for the Magistrate to weigh the facts that are relevant to the proper exercise of the discretion. These may well include: why the intervention order was made, whether it is still required, the views of the person for whose protection it was made, the views of the police and any other matters bearing on the risks that may flow to the community from the applicant being able to possess firearms. A number of the remarks made by the Magistrate suggest that he had regard to matters that were not related to the purpose of the Family Violence Protection Act 2008.

4. The discretion contained in s189 is broad and its limits are to ‘be determined by implication from the subject-matter, scope and purpose of the Act’. The Magistrate was required to examine the circumstances of the case, and determine, when those circumstances were considered objectively, whether S.'s application should be granted. The Magistrate did not follow that path.

5. Accordingly, the Magistrate's decision was quashed and the application remitted to the Magistrates' Court for rehearing and determination in accordance with law by a different Magistrate.

22 Sub-poena seeking production of red light camera manualIn Cai v County Court of Victoria & Ors MC 22/2017 C. sought the production of documents in relation to a charge of driving his motor vehicle against a red traffic arrow. A motion seeking inspection of the entire manual was dismissed by a Supreme Court judge. Upon appeal-HELD: Application for leave to appeal refused.1. Following C.'s partial success before Ginnane J in July 2015, the Traffic Camera Office provided C. with several pages extracted from the relevant manual, along with several other documents, which it contended responded to the legitimate forensic purpose identified by Ginnane J. C. argued that he was entitled to inspect the entire manual produced under subpoena.

2. John Dixon J was called upon to decide whether the second judge in the County Court had erred in his approach to the manual subpoena. He was unable to identify any error.

3. John Dixon J found that the second judge was satisfied after examining the full manual that — apart from the few sections identified — there was no further material within it that met the legitimate forensic purpose that Ginnane J had identified. Hence, as his Honour found, the judge had done all that he was required to do. John Dixon J. was undoubtedly correct to so find.

4. The appeal against the decision of John Dixon J had no real prospects of success, and the application for leave to appeal was ‘totally without merit’. Having considered the seriousness of the issues raised by the application and the consequences of the decision for C., the application for leave was ‘bound to fail’.

5. Accordingly, the application for leave to appeal and C.'s application for a stay of the order for costs were refused.

23 Self-represented litigant not permitted to use the Bar TableIn Goldberg v Stocker & County Court of Victoria MC 23/2017, a defendant in relation to traffic offences was not allowed to use the Bar Table when defending the charges. Whether Judge’s action amounted to the defendant’s denial of procedural fairness.HELD: Leave to appeal refused.1. J Forrest J considered whether G. was entitled to conduct his trial from the Bar table and held that G. had no right as such to conduct his case from the Bar table. It is for the Court to decide whether a self-represented litigant should have access to the Bar table in all the circumstances of the case. G. challenged this conclusion on the basis that he had been permitted to sit at the Bar table in proceedings before the Supreme Court of Appeal and the High Court.

2. J Forrest J did not misstate the law. G. submitted that, because he had been permitted to sit at the Bar table in a series of other courts, and in particular the High Court, this established that he had a right to sit at the Bar table in the County Court.

3. This submission was not accepted. The seating arrangements within the County Court were a matter for the County Court Judge subject to an overriding requirement to accord G. natural justice. As J Forrest J observed, it was unfortunate that G. was not permitted to sit at the Bar table but the seating arrangement did not of itself breach his rights.

4. G.'s real complaints were that he did not get a fair hearing and that the manner in which he was treated gave rise to an apprehension of bias. J Forrest J’s findings of fact were dispositive of both these complaints. They were not ‘glaringly improbable’ or ‘contrary to compelling inferences’, nor had they been demonstrated to be wrong by ‘incontrovertible facts or uncontested testimony’.

5. To the contrary, his Honour’s conclusions accorded squarely with the evidence as to what happened at the hearing and, in particular, with what could be observed on the video recording.

6. Accordingly, none of G.'s proposed grounds of appeal had any real prospect of success and leave to appeal was refused.

24 Bail – whether unacceptable risk- extended criminal history – bail granted.In Re Blencowe MC 24/2017 B. was charged with driving offences and found guilty. B. applied for appeal bail but was refused. Upon appeal-HELD: Appeal allowed. Bail granted with conditions.1. The Crown's contention that the extraordinary criminal history of B. demanded the conclusion that B. was an unacceptable risk of drink/driving for an 11th time. Many of B.'s prior drink/driving convictions were committed within months of his last court appearance for a similar offence.

2. B.s prior history needed to be understood in the context of current events. His health was parlous, the current offence was committed in August 2016, the last prior conviction for drink/driving before that was in 2010. B. had not offended again in the eight months or so since August 2016 and so any pattern of offending that the prosecution could point to seemed to have slowed considerably. Additionally, the circuit list at Bendigo was brimming to overflow and there was no guarantee that B.s case would be heard.

3. Given B.s precarious health, which may be better managed in the community, there was sufficient incentive for B. to remain abstinent until the prosecution of his appeal. Accepting on balance that this was the case, the risk of reoffending was ameliorated to an acceptable level.

4. If B. remained in custody and his appeal was not heard in the May circuit (and there was a real prospect of this) he may well have served a significant portion of his sentence before his appeal was heard. In that circumstance, his appeal would be rendered, if not otiose, certainly substantially compromised.

5. Accordingly, bail was granted with a number of conditions.25 Coronial determination – Coroner’s decision to refuse to re-open the Investigation

In Mortimer v West (Deputy State Coroner) MC 25/2017 the Coroner published a Finding into Death without an Inquest. Upon appeal-HELD: Appeal dismissed.1. Since 1 January 2015, any appeal under s84 of the Coroners Act 2008 brought by a senior next of kin (as M. was to Ms Lloyd) against a refusal to set aside a finding and re-open an investigation may be brought on either or both of two bases: first, on a question of law (s87) and, secondly, because ‘it is necessary or desirable in the interests of justice’ to allow the appeal (s87A). M. brought her appeal on both. Section 87(3) empowers the court, after hearing and determining the appeal, to make any order that it thinks appropriate, including an order remitting the matter for re-hearing to the Coroner’s Court with or without any direction in law.

2. Accordingly, the question for the Supreme Court was whether the appeal against the Coroner’s decision made on 24 June 2016 to refuse to set aside his Finding and to re-open the investigation into Robena Lloyd’s death should be allowed either (a) on a question of law; or (b) because it was necessary or desirable in the interests of justice to do so.

3. The appeal under s84 was against the Coroner’s refusal to re-open the investigation: it was not an appeal against the original Finding. A decision whether to reopen is governed by the particular set of considerations specified in s77(3). It followed that any ‘question of law’ on which this appeal could be based must be a question of law in connection with the refusal to re-open made on 24 June 2016, not the original Finding (and not the first refusal to re-open or the appeals consequent upon that refusal).

4. Matters raised by M. were a challenge to the making of the original Finding of the Coroner. Even if they had any merit as possible errors of law in the making of the Finding, they did not constitute available grounds of appeal against the refusal to re-open the investigation. None of the arguments by M. raised questions of law in respect of the decision made on 24 June 2016 refusing to set aside the Finding and re-open the investigation.

5. The coroner appeared to reach the decision because, as he stated, he was unable to conclude there were new facts or circumstances which would cause a previously accepted fact, material to the findings, to be so altered that a relevant finding may be unsustainable. The extent to which a new fact or circumstance might impact the original finding is a logical matter to weigh when considering whether it was appropriate to re-open an investigation. For that reason, there could be no error in the Coroner having regard to the potential impact of a new fact or circumstance when deciding if it was appropriate to re-open.

6. The Coroner’s use of the language to explain why he was not satisfied that it was appropriate to re-open the investigation did not denote any error of law because of the particular background to the subject application, the specific way in which the application had been put to the Coroner and needed to be addressed and the nature of the finding to which Mrs Mortimer’s application was chiefly directed. 7. It followed that even if the Coroner was wrong in his construction and application of the legal test, the decision ultimately did not involve an error of law. Accordingly, the appeal insofar as it relied upon a question of law was rejected.

26 Application for permanent stay of summary proceedings – principles to be applied.In Giurina v DPP & Anor MC 26/2017 G. applied to a Magistrate for a permanent stay of proceedings. The application was refused. Upon Appeal-HELD: Application dismissed.1. In relation to G.'s contention that the evidence before the Magistrate included the Court Book, the contention was rejected. An affidavit which is filed on the Court file is not evidence until it is read by the filing party stating that it relies on the affidavit.

2. In relation to G.'s application on the ground of legal professional privilege, the Magistrate was not in error in stating that the privilege remained with G's client and not G. There was no evidence of the nature of the seized documents.

3. In relation to G's submission that the Magistrate made an error on law in refusing G.'s submission on the ground that the circumstances of the case were such that the chances of a conviction were bleak and the case was foredoomed to fail, there was no error on the part of the Magistrate. The Magistrate was satisfied that there was no fundamental defect in the

prosecution case.

4. G. submitted that the search warrant had been illegally issued, but the Magistrate correctly decided that he would not go beyond the warrant in the application for a stay of the proceedings.

5. In relation to G.'s submission that the Magistrate was in error in concluding that there was no evidence which raised the issue of unreasonableness or collateral purpose, the Magistrate was not in error. The statement that there was no evidence in support of a proposition did not incorporate into the record all of the evidence for the purpose of examining whether the statement was true, any more than a statement by a court or tribunal that it is satisfied of a fact permits the Court to examine all of the evidence for the purpose of establishing that there was no, or insufficient, evidence of the facts so found.

27 Claim for work done by Law Clerk for solicitorIn Kuek v Phillips MC 27/2017, a law clerk claimed for work done on files belonging to a solicitor for whom the clerk was employed. The Magistrate made an order on the claim. Upon appeal-HELD: Appeal dismissed.1. In relation to K's appeal that the orders made by the original Magistrate were made in excess of jurisdiction and/or denied K. natural justice, K.'s appropriate remedy was to apply to the original Magistrate to set aside the order made. There was no breach of procedural fairness in the manner in which the original Magistrate reinstated the proceeding, as argued by K. – all that was done was that the claim was reactivated and the problem with the endorsement remedied. Magistrate Radford who heard the claim later was correct to refuse K.'s application which was misconceived and without foundation.

2. In relation to P.'s claim, the amount claimed was $19,537 but at the foot of the claim the only amount was for costs. K. claimed that P.'s claim was contrary to Rule 5.09(4) of the Magistrates Court General Civil Procedure Rules 2010 and should be barred. Magistrate Radford held that the endorsement was entirely inconsistent with the substance of the claim and was a clear and plain error which did not conceivably invalidate the substance of the claim. The end result was that the Magistrate was plainly right in rejecting the argument. K.'s conduct in asserting that the claim was finalised by a payment of $391 fell well short of the standard of conduct expected of a lawyer in this state – and this should have been recognised by his counsel – both before the Magistrate and on the appeal.

3. When Magistrate Radford rejected K.'s argument, an application was made for Magistrate Radford to recuse himself, but the application was refused. The application was ill-advised and should never have been made. The only complaint by K.'s counsel to the Magistrate was directed to the conduct of opposing counsel and not Magistrate Radford. Not one of the matters mentioned could have given rise (either alone or in conjunction) to an apprehended bias application. The Magistrate had given both parties (and counsel) a full and fair opportunity to be heard notwithstanding the conduct of K.'s case.

4. Allegations of bias or apprehended bias should only be made where the party making the point is satisfied that there is a proper basis for it. A proper basis does not include an irrational, even if genuinely held, belief that has no basis in fact.

5. K. and his counsel were both officers of the Court. Each was required to be satisfied that there were reasonable grounds for making the application and, if so, counsel was obliged to provide appropriate assistance to the Court. Counsel confronted the Magistrate ‘out of the blue’ with an unmeritorious but serious application absent of any authority to support his assertions. Only a moment’s reflection and a short perusal of the authorities would have cautioned against such a course of action.

6. On this serious matter counsel was obliged to exercise independent judgment and not to be a mere cipher of his client. In making this application counsel failed to have regard to that fundamental proposition. K. as an officer of the Court, was in no different position in terms of his instructions to make this application.

7. Magistrate Radford was not obliged to find that moneys were owed by K. to P. pursuant to an implied contract, just as he was not required to find that the payment was discretionary, or that the payment was to be calculated on the basis of the workbook hours multiplied by an appropriate hourly rate. But the fact of the matter was that there was evidence to support his finding and therefore K.'s grounds of appeal failed and the appeal was dismissed.

28 Habeas corpus – order not made according to law and invalidIn Stewart v Chief Commissioner of Police (No 2) and Anor MC 28/2017 S. sought his release from custody and later sought declarations that the Magistrates’ Court orders were not made according to law and were invalid.HELD: Magistrates’ Order was not made according to law and was invalid.1. More than inadvertence or misunderstanding by the police in a proceeding, or the conduct of the proceeding, are required to constitute an abuse of process. An abuse of process could only be found to have occurred if the application by the police was tainted by improper purpose, impropriety, was unjustifiably oppressive to S., or was likely to bring the administration of justice into disrepute. The evidence did not establish such matters. The application was none of these things because the police were entitled to bring an application to revoke S.'s bail because Magistrate Robertson’s order did not either release, remand or grant him bail.

2. The order made on the evening of 8 March 2017 was invalid. It is clear that the Magistrate was given incorrect information at the commencement of the proceedings and that may well have affected the course that was later followed. He then received further information from the Clerk and S. He did not have a copy of Magistrate Robertson’s order. His Honour was obviously concerned to ensure that S. had access to legal advice the following day.

3. The proceeding involving the charges brought by Mr Watson had been adjourned by Magistrate Robertson earlier in the day. There was no consent to relist them in the hearing before the Magistrate that evening. S. was unrepresented. The power of the Court to act on its own motion did not overcome that problem: Sections 331(3) and (4) of the Criminal Procedure Act. Even if, in a particular case, the ‘own motion power’ in s337 might permit abridgement, the circumstances did not exist here for it to be utilised, particularly as S. was unrepresented.

4. Accordingly, the Magistrate’s order made on the evening of 8 March 2017 was invalid on grounds one and two in the amended originating motion.

29 Claim for accounting services from a person and her former domestic partnerIn Remanet Pty Ltd v Sapunar MC 29/2017 a claim was made against two persons for forensic accounting services. The Magistrate dismissed the claim against the female person. Upon appeal-HELD: Appeal dismissed.1. The Magistrate did not fail to disclose adequate reasons in respect of the February meetings. Ex tempore reasons were given at the conclusion of the hearing. The transcript indicates that whilst reasons were being given, there was an exchange between the Magistrate and counsel for S. to clarify the dates of the meetings. The Magistrate accepted that there was a meeting on 14 February 2014, which S. had said was of a social nature. The Magistrate then referred to the 17 February meeting at a café in Queen Street and evidently accepted that it occurred. However, the Magistrate did not accept H.s conclusion that the meeting gave rise to a liability by S. for his services. The Magistrate specifically rejected the contention that S. may have been liable as a partner of G.

2. The Magistrate concluded that the plaintiff had not established that S. and G. were in a partnership, or that they had mutual financial interests such that it was in the interests of S. to employ H.

3. The Magistrate’s path of reasoning was evident in the ex tempore decision and RP/L's submission that there was an error of law was rejected.

4. The Magistrate specifically considered various emails between H. and Mr Koroneos. The Magistrate found that S. authorised Mr Koroneos to divulge information to others, including H. However, emails examined by the Magistrate did not constitute a request by Mr Koroneos for H. to do work on behalf of S. Further, RP/L did not appear to have raised or sent a bill in relation to the points of claim referred to in the emails.

5. The Magistrate specifically found that if any work was done on behalf of S., she did not retain H. to do it.

30 Defamation – publications stating that barrister negligently stated facts to racing stewards tribunalIn Sheales v The Age Company Pty Ltd & Ors MC 30/2017, a barrister sought damages for publications stating that the barrister negligently stated facts to the racing stewards tribunal. HELD: Barrister awarded damages in the sum of $175,000 plus costs.

1. The purpose of a damages award in a defamation action is to compensate the plaintiff for the consequences of the attitude adopted towards him by other persons as a result of the diminution of the esteem in which they hold him because of the defamatory statement, the grief or annoyance caused to the plaintiff himself by the defamatory statement, and to vindicate his reputation.

2. Section 34 of the Defamation Act 2005, requires that in determining the amount of damages to be awarded, that there is an appropriate and rational relationship between the harm sustained by the plaintiff and the amount of damages awarded. That relationship is necessarily informed by the statutory cap. Damages for non-economic loss are currently capped at $381,000 although that cap does not set a scale. The cap may be exceeded if, and only if, the court is satisfied that the circumstances of the publication of the defamatory matter to which the proceedings relate are such as to warrant an award of aggravated damages.

3. The imputation found by the jury to have been conveyed was serious in nature, not mild. It was a serious matter to publish to the readers of The Age that a barrister acted negligently in misstating facts about whether cobalt was performance enhancing in horses and whether it was harmful.

4. S. not only presented as a robust character but he strongly felt the hurt and distress that he suffered from the publications.

5. Each of the three purposes for an award of damages for defamation were significant in the present case – reparation for harm done, solatium for distress and embarrassment, and vindication. Other relevant factors included the seriousness of the imputation and the extent of publication. In addition, the defendants pointed to a number of mitigating factors.

6. The ‘negligence’ aspect of imputation B was a serious matter that the ordinary reasonable reader would understand to be something more than just mere carelessness. To impute that S. had acted negligently, albeit in a general rather than legal sense, was a serious matter even without a suggestion that the conduct in question was an actual breach of professional standards or would meet the requirements for a claim in negligence.

7. Publication of the article in The Age newspaper with a circulation of over 100,000 copies, followed shortly by an online article read by over 2,000 people, was not modest. Publication was in a major newspaper and on its affiliated websites and as such was distinguished from minimal publication.

8. An article in the racing section of the sports pages of The Age was likely to have been of interest to, and read by, people who had some knowledge of S.'s involvement in racing and sports law more generally. Although S. made no claim for special damage from lost earnings, the placement of the article in the sports and racing pages where it would not be seen by all of the readership of The Age was not a significant mitigating factor.

9. S. claimed on a number of bases that the defendants aggravated his damages. Aggravated damages are a component of compensatory damages that are awarded as a global sum reflecting the purposes of consolation, reparation and vindication, as well as any component for aggravation.

10. The damages awarded needed to be in a sum that properly vindicated S. An inference from the jury's verdict was that the publications amounted to an unwarranted personal attack upon S.'s competency as a barrister in the manner they found to have been conveyed. The impact of the hurt upon him personally had been substantial. He was, understandably, incensed. The articles were completely unfair and a personal attack upon him. They were certainly, in that respect, unusual articles in the sense that the conduct of a barrister is not typically accorded the prominence of being more newsworthy than the conduct of the party showing cause. In this case, those persons were two of Victoria’s most high profile race horse trainers appearing before a racing stewards’ tribunal.

11. Accordingly, S. was able to recover damages from the defendants in the sum of $175,000 plus costs.

31 Admissibility of tendency evidenceIn Hughes v The Queen MC 31/2017, the High Court dealt with an appeal by Hughes against his sentence of imprisonment for a number of sexual offences committed against girls aged between six and 15 years at the dates of offending. The Court had to address the sentence

imposed and the divergence in approaches on tendency evidence between NSW and Victoria.HELD: Appeal dismissed by four of the High Court judges.1. In a criminal proceeding, before tendency evidence may be adduced by the prosecution about the accused, the court must first ask whether the evidence has significant probative value and, if it does, the court must next ask whether that value substantially outweighs any prejudicial effect the evidence may have on the accused. The appeal was concerned with the answer to the first question.

2. The evidence as a whole was capable of proving that H. was a person with a tendency to engage in sexually predatory conduct with underage girls as and when an opportunity presented itself in order to obtain fleeting gratification, notwithstanding the high risk of detection.

3. Proof of H.'s tendency to engage in sexual activity with underage girls opportunistically, notwithstanding the evident risk, was capable of removing a doubt which the brazenness of H.'s conduct might otherwise have raised.

4. The force of the tendency evidence as significantly probative of H.'s guilt was not that it gave rise to a likelihood that H., having offended once, was likely to offend again. Rather, its force was that, in the case of this individual accused, the complaint of misconduct on his part should not have been rejected as unworthy of belief because it appeared improbable having regard to ordinary human experience.

5. The tendency evidence, which was conceded to be admissible, reinforced the other tendency evidence. When considered together, all the tendency evidence provided strong support to show H.'s tendency to engage opportunistically in sexual activity with underage girls despite a high risk of detection.

6. The probative value of the evidence of some of the complainants lay in proof of the tendency to act on the sexual attraction to underage girls, notwithstanding the evident risks. The fact that H. expressed his sexual interest in underage girls in a variety of ways did not deprive proof of the tendency of its significant probative value.

7. The NSW Court of Criminal Appeal's conclusion that the tendency evidence adduced at H.'s trial had significant probative value in relation to proof of each count in the indictment was not attended by error and it followed that the appeal was dismissed.

Hughes v The Queen [2015] NSWCCA 330, followed.Velkoski v The Queen [2014] VSCA 121; (2014) 45 VR 680 at 716; (2014) 242 A Crim R

222, not followed.32 Civil proceedings – award of damages made in absence of defendant

In Tombleson v Steventon MC 32/2017 an award of damages was made against the defendant who did not appear at the hearing. The defendant later applied for an order to set aside the order and rehear the matter. HELD: Appeal allowed. Time within which to appeal extended. The judgment entered in the Magistrates' Court was set aside and the claim remitted to the Magistrates' Court for hearing before another Magistrate.1. The course which these proceedings took was most unfortunate. It was regrettable that more attention was not paid to the fact that letters advising S. of the proceedings were returned to the sender. These included, not only the original claim and notice of the first directions hearing, but the notice of assessment, which was first sent to one address and later to another. In the face of these developments, the Magistrates' Court should have insisted on personal service, or at least made orders in relation to substituted service.

2. T.'s claim was amended at the instigation of the Magistrate by the addition of an amount for GST and other costs. This meant that the judgment sum was more than $6000 in excess of the amount originally claimed.

3. When the matter finally came to the Magistrate, he declined to set aside the judgment, on the basis that it was a final judgment. Whether or not that was so, it remained the case that there was effectively a default judgment on the question of liability and this was entered without there being any evidence that S. knew of the claim.

4. Accordingly, there was no option but to allow the application for an extension of time within which to appeal and to allow the appeal. In relation to the extension, it was true that several months elapsed after S.'s unsuccessful application to set aside judgment. However, having regard to the fact that he was unrepresented and that he was plainly labouring under

some mental health challenges, his failure to act more quickly should not have been held against him.

33 Bail application – defendant had failed to answer bail and committed further offences whilst on bailIn Re Application for Bail by Abduralrahim MC 33/2017 the defendant was charged with culpable driving causing death and other offences and was in a show cause situation.HELD: Application for bail dismissed.1. When A. was charged and remanded for the offences at a Car Wash place, he was already on at least two sets of bail. The trial bail, as varied, the subject of the culpable driving matter, specifically prohibited him from driving a motor vehicle. A. was also a suspended driver as a result of a demerit points loss of licence, which came into effect on 9 January 2017. That suspension was activated as a result of two traffic infringement notices issued on 12 May 2016, arising out of A. having driven a vehicle at between 35 and 40 kilometres above the posted speed limit. He had also been driving a prohibited vehicle, having had only a probationary licence at the time.

2. A. was required to show cause pursuant s4(4)(a) and (d) of the Bail Act 1977. That is because he was charged with an indictable offence alleged to have been committed whilst he was on bail awaiting trial for another indictable offence. Accordingly, the Court had to refuse bail unless A. showed cause why his detention in custody was not justified.

3. On any view, A. will be sentenced to a substantial term of imprisonment, whether it be for culpable driving causing death, or dangerous driving causing death. At best, therefore, he stands to gain some four months or so of freedom between now and November of this year, if he were granted bail.

4. A. did not satisfy the Court that he did not pose an unacceptable risk of further offending. That offending might take one of two forms. A. appeared to have a ‘short fuse’, taking umbrage at even the mildest of provocations, resulting in his becoming violent. Merely by being in the company of his sister, assuming that could be assured, would not overcome that risk.

5. In addition, A. had shown himself to be an utter menace on the roads and had, on more than one occasion, driven when not permitted to do so, and in a manner dangerous to others. He had obtained a South Australian driver licence dishonestly and by fraud.

6. When one balanced all these matters, with the virtual certainty that A. will be incarcerated for a substantial period of time later this year, irrespective of whether he is dealt with for culpable driving or some lesser offence, the only conclusion reasonably available was that bail should be refused.

7. Accordingly, A.'s application for bail was rejected.34 Procedure – abuse of process – permanent stay granted

In Melbourne City Investments Pty Ltd v Myer Holdings Limited MC 34/2017, a company was created for bringing class actions against listed corporations for contravention of the continuous disclosure provisions. When the company took legal action, the Court dismissed it as it was an abuse of process. Upon appeal-HELD: Appeal dismissed.1. The judge correctly held that MCI had brought this proceeding to gain a collateral advantage which was improper.

2. It is essential to consider the proper purpose of the proceeding and then to ascertain whether the plaintiff’s predominant purpose in bringing the proceeding was to fulfil that proper purpose or to gain some other collateral advantage.

3. Ordinarily, the proper purpose of a proceeding is for the plaintiff to obtain redress for a wrong done to it or to prevent a wrong; that is to obtain some form of substantive relief. The relief may take different forms dependent upon the wrong that has been perpetrated or is threatened. It may involve an award of damages. It may involve orders for specific performance or injunctive relief. Other forms of substantive relief may be appropriate. Properly understood, it is this substantive relief to which the authorities refer when they speak of the ‘scope of the remedy.’ It is narrower than the meaning that MCI would attribute to the phrase.

4. The courts have long recognised that commencement of an action is not an abuse of process if the predominant aim of the plaintiff is to settle the claim before it is determined.

That applies equally as a proper purpose of a class action and reflects the reality that most representative actions settle.

5. The focus must be on the predominant purpose of the plaintiff and whether that was improper. The purpose of the proceeding here was not the conduct of the substantive claim (either for the benefit of MCI or for the benefit of the group members) but rather the consequential orders that may be made if MCI was successful or the proceeding was settled. It was in that sense that the advantages MCI sought were collateral.

6. The judge correctly stayed the proceeding brought by MCI against Myer. MCI commenced the proceeding with the predominant purpose of generating income from the proceeding itself. Its predominant purpose was not to seek compensation for any wrong done to it, nor to assist the group members by acting as lead plaintiff. It instituted the proceeding not for the purpose for which class actions are designed but instead to gain a collateral advantage. That constituted an abuse of process.

Cases considered: Williams v Spautz [1992] HCA 34; (1992) 174 CLR 509; 107 ALR 635; (1992) 66 ALJR 585; 61 A Crim R 431; Goldsmith v Sperrings Ltd [1977] 2 All ER 566; [1977] 1 WLR 478; Dowling v Colonial Mutual Life Assurance Society Ltd [1915] HCA 56; (1915) 20 CLR 509; Campbells Cash and Carry Pty Ltd v Fostif Pty Ltd [2006] HCA 41; (2006) 229 CLR 386; (2006) 229 ALR 58; (2006) 80 ALJR 1441; Farey v National Australia Bank Ltd [2016] FCA 340; Treasury Wine Estates Limited v Melbourne City Investments Pty Ltd [2014] VSCA 351; (2014) 45 VR 585; (2014) 318 ALR 121; Melbourne City Investments Pty Ltd v Leighton Holdings Limited [2015] VSCA 235, considered.

35 Income tax returns not lodged – charges laid by ATO – service of chargesIn Guss v Australian Taxation Office MC 35/2017 charges were laid against G. and found proved by the Magistrate. The question was whether the final notices had been sent to G.HELD: Appeal dismissed. Remitted to the Magistrates' Court for attention of the Magistrate.1. The factual evidence to which reference was made when addressing the ATO's submissions, provided more than sufficient evidence to render it open to the Magistrate to find that G. was properly served with the Final Notice. The body of evidence referred to in paragraph [54] above was ample to found a basis upon which the Magistrate could either directly find or, where necessary infer, that the Final Notice addressed to G. was posted and thereby served as required.

2. Further, Ms Llewellyn's evidence as to the process which she followed and the production by her of the daily mail statistics from 5 March 2014, which were not challenged or contradicted by G. at trial provided a key element of such evidence.

3. It was open to the Magistrate to rely upon the service of the Notices by reason of the averments in the charges as provided by s8ZL(1) of the TAA. On that basis alone, the Magistrate was entitled to find that the facts in the statements in the averments were made out as prima facie evidence.

4. Accordingly, there was evidence before the Magistrate that the Final Notice was approved and placed in an envelope addressed to G. and also evidence that the notice was copied and placed in a second envelope with a letter addressed to G.'s place of work. There was evidence that the envelopes were pre-paid and placed in the relevant out tray at the ATO and that, on the day in question, 22 standard letter items of mail were collected and delivered to the Australia Post driver, along with four items of larger mail.

5. To establish service of a document by post there must be evidence that:

(a) the envelope containing the document had been correctly addressed, including to the correct person; (b) the envelope had been stamped or franked or there was some other basis upon which to conclude that it had been paid in respect of its postage; and (c) the envelope was placed into the custody of Australia Post for the purposes of delivery as a letter.

6. In this case there was evidence available before the Magistrate upon which it was open to her Honour to find that each of the key elements, referred to in the last preceding paragraph, required to establish that a postal item had in fact been posted were made out.

7. Accordingly, G.'s grounds of appeal were not made out.

8. The Magistrate appeared to have relied upon s29 of the Acts Interpretation Act 1901 (Cth) (AIA) which deems the service of items which have been posted in accordance with the section, subject to contrary evidence. It was open for the Magistrate to so conclude. The basis for that finding were the facts that have been referred to, summarised in the Magistrate’s reasons, combined with the rejection of the potential rebutting evidence of G. which was not accepted by the Magistrate. Accordingly, there was no evidence displacing the application of s29 of the AIA although, given her Honour’s finding, any reliance on the section was, with respect, unnecessary.