Austin v Dwyer (special witness proceedings) [No 2]
[2019] VSC 545
•16 August 2019
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S ECI 2018 02859
| FIONA AUSTIN | Plaintiff |
| v | |
| DETECTIVE SERGEANT TRENT DWYER | First Defendant |
| MAGISTRATES’ COURT OF VICTORIA [No 2] | Second Defendant |
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JUDGE: | COGHLAN JA |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 9 August 2019 |
DATE OF JUDGMENT: | 16 August 2019 |
CASE MAY BE CITED AS: | Austin v Dwyer (special witness proceedings) [No 2] |
MEDIUM NEUTRAL CITATION: | [2019] VSC 545 |
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JUDICIAL REVIEW – Application to review decision of Magistrates’ Court of Victoria – “Special witness” order – Criminal Procedure Act 2009 (Vic) ss 141, 145, 162, 163, 242 – Crimes Act 1914 ss 15Y, 15YAB – Plaintiff committed to trial in the County Court – No proceedings remaining in Magistrates’ Court to which order would apply – Order of magistrate could not bind County Court judge – Grounds not made out.
PRACTICE AND PROCEDURE – Application by defendant for summary judgment under s 62 of the Civil Procedure Act 2010 (Vic) – Application for summary judgment granted.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | In Person | |
| For the First Defendant | Ms H Spowart | Senior Advocacy Team, Victoria Police |
| For the Second Defendant | No Appearance |
HIS HONOUR:
This matter was listed for hearing of the originating motion for judicial review dated 17 December 2018 and for hearing of an application for summary judgment dated 1 July 2019.
The proceedings involving the plaintiff have been long and tortuous. Apart from the proceedings in this Court, there appears to be two sets of first instance proceedings on foot.
First, the proceedings in the County Court which are listed for trial and the associated summary proceedings which will be decided in the Country Court after the completion of the trial.
Second, there are ongoing proceedings in the Magistrates’ Court relating to the Interim Personal Safety Intervention Order. The present order K11461342 was made on 14 June 2019. That order replaced interim order G12353529. The plaintiff seeks judicial review of that case on the basis that a permanent stay should have been granted and on other grounds alleging lack of procedural fairness. [1]
[1]S ECI 2019 03477.
The plaintiff has sought judicial review of four other matters including this matter. Stated briefly, the other applications have been described as OM1, OM2 and OM3.[2] OM1 and OM2, which challenged the decision of Judge Taft in the County Court to strike out an appeal against the making of the original Person Safety Intervention Order and a decision of the Magistrates’ Court to adjourn the final hearing of the intervention order, were heard by Ginnane J and both those applications were dismissed on 29 May 2019.[3] OM3 was an application indirectly related to OM2 which challenged the adjournment of the criminal proceedings in identical circumstances to those referred to in OM2. On 10 December 2018, Derham AsJ summarily dismissed that application.[4]
[2]Austin v Dwyer [2018] VSC 770, Derham AsJ described the various applications in that way.
[3]Austin v Dobbs [2019] VSC 355.
[4]Austin v Dwyer [2018] VSC 770.
Both of those decisions are the subject of applications for leave to appeal to the Court of Appeal.
In relation to this application for judicial review, application was made before Daly AsJ for summary dismissal. Her Honour rejected that application.[5] Although her Honour was of the view that the impugned order was probably of no effect, she was not prepared to enter summary judgment in the absence of some specific statutory provision bringing the impugned order to an end.
[5]Austin v Dwyer (special witness proceeding) [2019] VSC 206.
These reasons should be read in conjunction with the reasons of Daly AsJ.[6]
[6]Ibid.
In her reasons, her Honour said:
However, I am not convinced, to the degree of satisfaction required to grant summary judgment, that the 10 December orders no longer have any continuing effect. As this is the only basis upon which the informant seeks summary judgment, the application should be dismissed, subject to the right of the informant to make a fresh application should the 10 December orders be vacated prior to the scheduled hearing date of 9 August 2019, or Ms Austin is committed for trial prior to that date, or if it becomes apparent during the course of the committal process that the 10 December orders have no ongoing effect.
The statutory provisions referred to by Ms Austin in her later submissions reinforce my view that, notwithstanding s 162 of the CPA, the effect of the 10 December orders is spent in the event that Ms Austin is committed for trial in the County Court. Section 15YAB of the Act states that ‘the court may declare a person to be a special witness in relation to the proceeding’. If it were ‘a court’ that could make the order, I could see how concerns could arise that the 10 December orders would have ongoing effect once the County Court proceeding was underway. Section 192A of the Evidence Act 2008 (Vic) also refers to ‘the court’ being able to give ruling and make findings in relation to evidentiary matters prior to evidence being adduced. In other words, it is the court in which evidence is to be adduced that is empowered to make preliminary determinations regarding the admissibility of evidence and the status of witnesses, not any court. Further, the provisions of the CPA referred to by Ms Austin all concern pre‑trial procedures for a trial in the County Court or this Court. Nothing in these provisions supports Ms Austin’s concern that the 10 December orders would bind a judge of the County Court managing or hearing a trial. Finally, Ms Austin’s concerns about the operation of s 15YNB of the Act are misplaced: this provision is only applicable where the complainant in a proceeding is a child or vulnerable adult, and there is a fresh trial after an appeal or a discontinuance. Mr Dodds is not a ‘vulnerable adult complainant’ within the meaning of s 15YAA of the Act.[7]
[7]Ibid [40]-[41].
It should be noted that the significant difference between the position at the time her Honour considered the matter and now is that, on 2 April 2019 the plaintiff was committed to stand trial in the County Court on two charges of stalking and two charges of using a carriage service to harass.[8] The remaining charges were transferred to the County Court.[9] The summary offences will fall to be dealt with after the completion of any trial in the County Court.[10]
Her Honour was correct to stay her hand because it was always possible that the matter might have remained in the Magistrates’ Court even though the plaintiff had expressed a very strong contrary view.
[8]Criminal Procedure Act 2009 (Vic) s 141 (‘CPA’).
[9]Ibid s 145.
[10]Ibid s 242.
I am satisfied that the committal for trial and transfer referred to above mean that there is no proceedings left in the Magistrates’ Court to which the impugned order could apply.
I do not accept that the order made below could bind a County Court judge in relation to the conduct of a criminal trial. Some reliance has been placed upon s 162 of the Criminal Procedure Act 2009 (Vic) (‘CPA’). The purpose of that section is to give certainty to the time at which proceedings commence. Section 161 of the CPA makes provision for proceedings to commence when a direct indictment is filed. That is irrespective of whether there were earlier proceedings in the Magistrates’ Court. Section 162 simply reinforces the proposition that in all other cases the proceedings will have commenced in accordance with ss 5 and 6 of the CPA. The date of commencement of proceedings may be relevant to certain time limits and whether or not complainants are children.[11]
[11]Ibid s 163(2).
It follows that there is nothing in s 162 of the CPA which compels a construction of the order made below which would or could bind a County Court judge on trial. In an ordinary sense, the Magistrates’ Court could not bind the County Court.
The structure of the CPA is such that the procedures applicable to the conduct of summary hearings, committal and trial are set out in different parts of the CPA and are to be applied in accordance with the proceedings then being dealt with.
In argument before me, the plaintiff also raised s 199 of the CPA suggesting that that section could form the basis of the continued operation of the impugned order. That section only applies to trials and there is no force in the plaintiff’s argument.
I was urged by the plaintiff to have regard to the importance of the impugned order as it relates to the Personal Safety Intervention Order. Associate Justice Daly observed in her decision that this Court does not provide advisory opinions or decide matters in a way which has no effect.
I made the following observation; at the time of the order in the Magistrates’ Court it had been intended that the question of the making of a final order in the Personal Safety Intervention Order proceedings and the hearing of the criminal charges would follow one another. I do not have to decide it here but it seemed to me that the impugned order was made referring to the charges, not the Personal Safety Intervention Order.
The order of Magistrate Gilligan is set out as follows:
Pursuant to s 15YAB of the Cth Crimes Act 1914, I declare that both witnesses Dobbs and Carlon be declared ‘special witnesses’ in relation to all charges both Cth and State – see s 15Y(5) of the Act. Pursuant to s 15YG of the Act, the Court orders that a person be appointed to appear on the defendant’s behalf for the purposes of cross-examining the special witnesses should the accused be unrepresented by choice. She has been informed that she may not cross-examine such witnesses & the matter should proceed.
Whether or not the intervention order proceedings could be classified as, “any proceedings connected with a proceeding for a Commonwealth offence”[12] was not decided. It was accepted before Magistrate Gilligan, that the proceedings anticipated in January 2019 were separate proceedings.[13] As matters presently stand, all of the Commonwealth offences have been committed for trial and there is no connection between the Personal Safety Intervention Order proceedings and the Commonwealth offences which would attract the operation of s 15YAB and s 15Y(5) of the CA.
[12]Crimes Act 1914 (‘CA’) s 15Y(5).
[13]It was during that hearing that it became clear that the plaintiff wanted the matter to be tried in the County Court.
It has been submitted on behalf of the plaintiff that I should have regard to what was said by Mr Vella who appeared on behalf of the Director of Public Prosecutions at the directions hearing on 2 April 2019. The comment made may well have been correct if there was a determination on the merits.
It was submitted on behalf of the defendant that I should enter summary judgment by dismissing the application because the impugned order can have no effect and the application comes within what was said by Daly AsJ in her reasons.[14]
[14]See [9] above.
I am satisfied that the point has been reached in these proceedings that the impugned order is of no practical effect because there are no proceedings left in the Magistrates’ Court to which the order could apply. I do not accept that the order could have standing in the trial scheduled in the County Court and it was accepted on behalf of the defendant before me that that was so. I regard the committal for trial as being one of the events Daly AsJ said would enliven reconsideration of summary dismissal.
To avoid doubt, I make it clear that if there is any attempt to invoke the operation of s 15YAB of the CA in the County Court, that could only be done on the basis of a fresh application and decided after hearing any relevant evidence and submissions. There is no reason why that matter could not be heard as a preliminary matter well ahead of the trial which is listed for hearing on 25 May 2020.
The plaintiff argued that even if the order has no effect, she is aggrieved by the order and its terms as set out above because the order reflects badly on her character as it would be assumed that the order was made because she was some sort of predatory offender.[15]
[15]See s 15Y(1)-(2) of the CA and Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 (‘Ainsworth’).
Although it will be common for applications to be made for vulnerable witness orders for both children and adults pursuant to s 15Y of the CA, the power to make this order derives from s 15Y(3) which is of general application to Commonwealth offences and then depends upon the operation of s 15YAB. The terms of the order made by Magistrate Gilligan are set out above. The reference to s 15YAB plainly distinguishes a “special witness” from a vulnerable witness referred to in s 15Y. It is s 15Y which contains reference to the offences about which the plaintiff complains.
I do not accept that the order carries with it the complication suggested by the plaintiff and I would not interfere with the order on that account.
I do not accept that the principle set out by the High Court in the case of Ainsworth[16] necessarily applies to court orders, as is suggested by the plaintiff.
[16]175 CLR 564.
I have read the whole of the transcript of the hearing below relating to the application for the special witness order. I have read the statement of the two witnesses. I made it clear to the plaintiff, who does not accept the accuracy of the statements, that I would read those statements so that I knew what had been before the magistrate and I remain uninfluenced by the content of the statements. Although it is not strictly necessary for me to decide, I am satisfied that none of the grounds set out in the originating motion for judicial review have been made out.
For the reasons set out above, this proceeding should be summarily dismissed.
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