Boros v Magistrates' Court
[2019] VSC 258
•15 April 2019 (Revised reasons published 23 April 2019)
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S CI 2018 00049
| DANIEL BOROS | Plaintiff |
| v | |
| MAGISTRATES' COURT OF VICTORIA | First Defendant |
| LEADING SENIOR CONSTABLE DAVID HUYBENS | Second Defendant |
---
JUDGE: | Cavanough J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 15 April 2019 |
DATE OF JUDGMENT: | 15 April 2019 (Revised reasons published 23 April 2019) |
CASE MAY BE CITED AS: | Boros v Magistrates’ Court |
MEDIUM NEUTRAL CITATION: | [2019] VSC 258 |
---
CRIMINAL LAW – Summary traffic offence - Evidence – Criminal record of unrepresented accused contained in preliminary brief of evidence – Accused not present at hearing – Criminal record seen and read out by Magistrate as part of his reasons before pronouncing accused guilty – Error of law on the face of the record – Unnecessary to decide whether jurisdictional error also involved – Decision quashed – Criminal Procedure Act 2009 ss 37, 38, 77, 84, 86, 87, 94.
---
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | In person | |
| For the Defendant | C Carr | John Cain, Solicitor for Public Prosecutions |
HIS HONOUR:
On 15 April 2019 I heard and determined an application by the plaintiff, Mr Boros, for judicial review of an order made by the Magistrates’ Court by which, in his absence, Mr Boros was fined $500 without conviction on a summary charge of failing to wear a seat belt in a moving vehicle.
Pursuant to Order 56 of the Supreme Court (General Civil Procedure) Rules 2015, by an order in the nature of certiorari, I quashed the order of the Magistrates’ Court; and by an order in the nature of mandamus I required that the charge be re-heard and re-determined according to law.
My reasons for making those orders had been indicated orally in broad terms in the course of discussion and afterwards. I foreshadowed that I may publish reasons in writing, and I now do so.
On 22 February 2017 the second defendant, Leading Senior Constable David Huybens, issued a traffic infringement notice to Mr Boros. The notice alleged that Mr Boros had driven a vehicle in Napoleon Road, Lysterfield, that day without wearing a seat belt. Mr Boros later elected to have the charge heard before a Magistrate.
Accordingly, on 12 July 2017, a charge-sheet and summons was issued. LCT Huybens was the named informant. The document stated that the case would be heard at 1.30 pm on 6 December 2017 at the Ringwood Magistrates’ Court.
On the same day (12 July 2017), LCT Huybens completed a ‘preliminary brief’ for the proceeding, pursuant to Division 2 of Part 3.2 of the Criminal Procedure Act 2009 (‘the Act’).
Also on that same day, LCT Huybens signed a standard form document headed ‘Affidavit/Declaration of Service of Charge-Sheet and Summons.’[1] This document recited that LCT Huybens had served a true copy of the charge-sheet and summons, and also a copy of the preliminary brief, on Mr Boros, by posting them to Mr Boros’ residential address on that same day (12 July 2017).
[1]It is not clear from the copy of this document in the Court Book whether it became an affidavit or a statutory declaration.
Under s 37 of the Act, a preliminary brief must include, among other things, ‘a copy of the criminal record of the accused that is available at the time the preliminary brief is served or a statement that the accused has no previous convictions or infringement convictions known at that time.’ Section 77 of the Act specifies what a criminal record must contain. In the present case, the preliminary brief included a copy of the criminal record of Mr Boros, which included seven entries for traffic matters (of which five were for traffic infringement notices and two for matters dealt with in the Magistrates’ Court) and two entries for non-traffic matters (one of those being for a total of 14 theft-related offences all dealt with on the one occasion in 1995).
In due course Mr Boros’ case was included in the publicly available electronic diary (known as ‘EFAS’) for the Magistrates’ Court. Consistently with the terms of the charge-sheet and summons, the case was listed in EFAS for a mention hearing at 1.30 pm on 6 December 2017. Section 53 of the Act provides, in relation to a summary offence, that, at a mention hearing, the Magistrates’ Court may proceed immediately to hear and determine the charge or may fix a date for a contest mention hearing or may fix a date for a summary hearing of the charge or may make any other order or give any direction that the Court considers appropriate.
It seems that, in advance of 6 December 2017, Mr Boros communicated with the Ringwood Magistrates’ Court indicating that he wanted an adjournment of the case until 5 March 2018.
Mr Boros was not legally represented at that time or at any other time in relation to the proceeding in the Magistrates’ Court or in relation to the proceeding in this Court.
Mr Boros duly attended in person at the Ringwood Magistrates’ Court at 1.30 pm on 6 December 2017 and waited for his case to be called. Apparently it had been a busy day for the presiding Magistrate, Mr Malhotra. The case was not called until 4.09 pm. As soon as the case was called, there began a series of exchanges between Mr Boros and the Magistrate that were unfortunate on both sides. After a while, the case was stood down. It was called on again at about 5.40 pm. In Mr Boros’ presence, the Magistrate then adjourned the case until 9.30 am the next morning (7 December 2017).
Mr Boros did not attend at 9.30 am or at all on 7 December 2017. Rather, at about 11.20 am, he sent a two page email to the co-ordinator of the Magistrates’ Court complaining about what had happened on the previous day and saying, among other things, that he would not be attending Court that day because of inadequate notice.
Mr Boros’ email came to the attention of Magistrate Malhotra. Having considered it, and having referred to the events of the previous day, the Magistrate determined that Mr Boros had waived his opportunity to have his adjournment request dealt with.
The Magistrate then said that he was satisfied as to service,[2] and as to Mr Boros’ knowledge of the adjourned hearing, and that he proposed to proceed ‘by way of brief of evidence’. This was clearly a reference to the procedure available under Division 10 of Part 3.3 – in particular, ss 80 and 84 – of the Act.[3] It is clear from the transcript of the hearing that, by this stage, the Magistrate had already been in possession of a copy of at least part of the preliminary brief. The following exchange took place:
His Honour: … Senior, have I got the whole brief before me, do you know?
Prosecutor:It’s my understanding from your clerk, your Honour, that you should have. If not, I have a copy that I can hand up to your Honour.
His Honour: All right. And is it your practice, senior, that you need to run it or are you happy for me to just look through the materials?
Prosecutor:I am happy to go through it by way of brief of evidence if your Honour is happy to do so.
His Honour: All right. I have a brief of evidence before me which discloses one single charge…
[2]The Magistrate said that Mr Boros was served on Tuesday 7 July 2017, which must have been a slip on the Magistrate’s part. The proceeding had not been issued until 12 July 2017 (five days later). It appears that the Magistrate misread what was set out in the affidavit/declaration of service, namely that the informant had served the relevant documents by posting them on Tuesday 12 July 2017.
[3]For a discussion of Division 10 of Part 3.3 of the Act, see my judgment in Kinnersly v Johnston [2018] VSC 752.
The Magistrate proceeded to read aloud from the preliminary brief. He noted again that the preliminary brief had been served. He then read out the informant’s statement of the alleged facts on which the charge was based.[4]
[4]As to the requirements for, and the permitted use of, the informant’s statement of alleged facts, see ss 37(1)(c) and (2), s 38 and s 84(1)(d) of the Act.
As soon as the Magistrate completed his reading out of the informant’s statement of alleged facts, and before the Magistrate said anything else, the prosecutor spoke up, saying:
And there are matters to be alleged, your Honour.
The Magistrate turned immediately to that topic. The transcript reads:
His Honour: I have one page of criminal priors and two pages of VicRoads summary. The criminal priors are that in Dandenong Magistrates’ or at Dandenong Magistrates’ Court on 15 December 1995, Mr Boros was found – charges were found proven, being theft of a motor vehicle, attempted theft of a motor vehicle, go equipped to steal or cheat, appears to be a sum total of 14 charges, all charges without conviction were adjourned for a period of 12 months, presumably on a bond, to pay $200 into the Court fund and all items were forfeited. The other charge being on 9 March 2017 in the Dandenong Magistrates’ Court, he failed and refused to supply a name and address. Those charges were dismissed under section 76.
The Sentencing Act, as I say, I have two pages of traffic matters which I don’t propose to read into the Court transcript. Having considered those matters, I am now satisfied that the charges are proven and dismissed, sorry, charges are found proven and I will sentence accordingly. Just bear with me. Senior, what is the, do you know the amount of the infringement notice in this matter?
Prosecutor:Yes, your Honour. The original infringement amount was $311 and three demerits.
His Honour: Maximum penalty for the offence, do you know?
Prosecutor:I don’t know but I can find out.
His Honour: Thank you, if you wouldn’t mind.
Prosecutor:The maximum penalty, your Honour, is ten penalty units.
His Honour: In the circumstances, I fine Mr Boros without conviction the sum of $500, statutory costs in the sum of $79.50. It is well known, there is evidence based on knowledge to show that the wearing of seat belts provides for the safety of both the driver, passengers and other road vehicle users. I find that Mr Boros’ conduct in not doing so to be of such conduct befitting the fine imposed. That completes the hearing. I will give Mr Boros one month – 4 January 2018 to pay that fine. Thank you for your assistance senior.
Thus the transcript of the Magistrates’ Court hearing seems to indicate that the Magistrate took into account Mr Boros’ criminal record in arriving at his decision on the charge. I raised this with counsel for LCT Huybens, Mr Carr, at the outset of the judicial review hearing. Very properly, Mr Carr recognised that it was a point that he needed to deal with notwithstanding that Mr Boros himself (not being legally represented) had not raised it.
Mr Carr acknowledged that, if the transcript be read literally, the Magistrate erred in a way that would warrant the intervention of this Court. That was a proper acknowledgement. Where a preliminary brief has been served on the accused and the Magistrates’ Court goes forward under ss 80 and 84 of the Act in the absence of the accused (as was the case here), the criminal record of the accused (as served in the preliminary brief) is not admissible on the question of guilt. That appears from s 84(5) of the Act, which provides:
(5)The criminal record of the accused or a statement that the accused has no previous convictions or infringement convictions, when served in a preliminary brief, is only admissible for the purpose of sentencing in accordance with s 86.
Correspondingly, s 86 of the Act in effect provides, so far as relevant, that if the Magistrates’ Court finds the accused guilty in the absence of the accused and is satisfied that a copy of the criminal record of the accused was served on the accused at least 14 days before the hearing of the charge, the criminal record is admissible, but only for the purpose of sentencing.
Sub-section 84(5) and s 86 of the Act are broadly reflective of principles that have long applied to the conduct of criminal proceedings in England and Australia, whether at common law or under statute or both. Thus in Attwood v The Queen[5] the High Court said that bad character:
[5](1960) 102 CLR 353 at 359‑360 (citation omitted). See also R v Halliday (2009) 23 VR 419, 426‑439, especially at 433‑439 [54]‑[82].
…can be proved on a criminal trial only in answer to evidence adduced of the accused’s good character. It is not excluded as irrelevant to proof of guilt. It is excluded as a matter of policy, policy deeply rooted in principle. ‘The evidence is relevant to the issue, but is excluded for reasons of policy and humanity; because, although by admitting it you might arrive at justice in one case out of a hundred, you would probably do injustice in the other ninety-nine…’
Likewise, in Dawson v The Queen,[6] Dixon CJ said:
It is the thesis of English law that the ingredients of a crime are to be proved by direct or circumstantial evidence of the events, that is to say, the parts and details of the transaction amounting to the crime, and are not to be inferred from the character and tendencies of the accused.
A similar position applies under the uniform evidence legislation in relation to evidence of bad character and tendency evidence.[7]
[6](1961) 106 CLR 1, 16. See also and compare Phillips v The Queen (1985) 159 CLR 45, esp at 54‑58 (Mason, Wilson, Brennan and Dawson JJ), 59‑63 (Deane J, dissenting).
[7]See, for example, Huges v The Queen [2013] VSCA 338 [14]‑[38]; Allen v The Queen [2016] VSCA 59 [52].
Conscious, no doubt, of this general legal background, Mr Carr ventured to submit (albeit without any vigour) that the Magistrate should not be taken to have made such an obvious and fundamental mistake as the literal reading of the transcript would indicate that he had made. Mr Carr tied this submission to the words ‘those matters’ as used by the Magistrate in the following sentence within the passage from the Magistrate’s reasons set out above:
Having considered those matters, I am now satisfied that the charges are proven…
Mr Carr submitted that in referring to ‘those matters’ the Magistrate should not be taken to have been referring to what the Magistrate had been dealing with immediately before, namely Mr Boros’ criminal record, but rather to the informant’s statement of alleged facts which the Magistrate had read out previously.
I was unable to accept Mr Carr’s submission in this regard.
In my view, the reference to ‘those matters’ was, at best, a reference to all that had gone before, not merely a reference to the informant’s statement of alleged facts.
The word ‘matters’ was the very word that the prosecutor had used to bring up the subject of Mr Boros’ criminal record. That led immediately to the Magistrate dealing with Mr Boros’ record in some detail, concluding with the Magistrate’s reference to the two pages that listed what he himself called ‘traffic matters’. Notably, this use by the Magistrate himself of the word ‘matters’ occurs in the sentence that appears immediately prior to the sentence highlighted by Mr Carr that again included that word.
It is also noteworthy that in the very sentence in question the Magistrate says that he is ‘now’ satisfied that ‘the charges (sic) are (sic) proven’.[8]
[8]Of course, there was only one charge.
Mr Carr fairly acknowledged that he was not in a position to make the kind of submission that is sometimes made in respect of errors alleged to have been made by judicial officers, namely a submission to the effect that the particular officer was so experienced as to have been unlikely to have made the alleged error. Mr Malhotra had only been appointed to the magistracy in March 2017.
In my view, Magistrate Malhotra did indeed take into account Mr Boros’ criminal record in deciding upon his guilt. That was the plain meaning of the words he used. As indicated above, Mr Carr accepted that, if I were to make such a finding, the decision of the Magistrate could not stand. The Magistrate’s error was an error of law. It represented non-compliance with s 84(5) of the Act, at least. The error of law appeared from (indeed, it appeared expressly within) the Magistrate’s own oral statement of his reasons. It was thus an error of law on the face of the record.[9] It could not be said, and was not said, that the decision of the Magistrate would necessarily have been the same even in the absence of the error of law: it followed that the Magistrate’s decision fell to be quashed by an order in the nature of certiorari.[10]
[9]Administrative Law Act s 10. See my judgment in Wilson v County Court (2006) 14 VR 461, 469‑470 [34]‑[35]; Easwaralingam v Director of Public Prosecutions (2010) 208 A Crim R 122 at 127, [22] per Tate and Buchanan JJA agreeing; Azadzoi v County Court [2013] 40 VR 390 [10] (fn 1) (Bell J).
[10]Wilson v County Court (2006) 14 VR 461, 470‑473 [36]‑[50] and cases there cited.
In those circumstances, it was unnecessary to consider or decide whether the Magistrate’s error also amounted to a jurisdictional error. I note in passing that while the Magistrate’s error was an error of law (at least insofar as it involved the admission of inadmissible evidence), it seems that not every error of law made by an inferior court (as distinct from a tribunal or administrator) necessarily amounts to jurisdictional error.[11] Likewise, it was not necessary to consider whether the error of law of the Magistrate became a jurisdictional error because of its ‘fundamental’ nature.[12]
[11]Ghaderi v Director of Public Prosecutions (NSW) [2018] NSWCA 119 [11]. See also Firth v Director of Public Prosecutions (NSW) [2018] NSWCA 78 [15]-[22] esp at [20]. See also my judgment in Rees v County Court [2011] VSC 67 [13]‑[14] and cases there cited: appeal dismissed: Rees v County Court [2011] VSCA 179.
[12]Cf Yisrael v District Court (NSW) (1996) 87 A Crim R 63, 68‑69 (per Meagher JA dissenting), cited in Wilson v County Court (2006) 14 VR 461, 472 [45].
Even if I had been wrong about the Magistrate actually taking into account Mr Boros’ criminal record for the purposes of ruling on his guilt or innocence, it seemed to me that, very probably, the Magistrate became at least aware of Mr Boros’ criminal record before he arrived at his decision on guilt, and certainly that he became so aware before he pronounced that decision. The criminal record was in the preliminary brief, together with a copy of the charge-sheet and summons. In order to proceed under ss 80 and 84 of the Act, it was necessary that the Magistrate be satisfied as to service of the charge-sheet and summons and of the preliminary brief. As already mentioned, the informant had prepared an affidavit/declaration of service which dealt with both of those things together. It seems that this was the only relevant affidavit/declaration of service made in this case. Therefore, by virtue of s 399(4) of the Act, it was, in effect, necessary to file the informant’s affidavit/declaration in the Magistrates’ Court in advance of the hearing. That document did not say in terms that a copy of the preliminary brief was annexed or exhibited to it. However, Mr Carr frankly and helpfully informed me that it is normal practice in Victoria that, where a preliminary brief has been served, a copy of it is filed in the Magistrates’ Court with the affidavit/declaration of service.[13] In any event it is clear from the transcript in this case that Magistrate Malhotra had a full copy of the preliminary brief (including Mr Boros’ criminal record) by no later than the time when he commenced to read aloud from the preliminary brief.
[13]He said that, in his experience, this is done to guard against accidental loss of the copy of the preliminary brief.
In my view, it was enough to vitiate the decision of the Magistrate in this case that he was aware of Mr Boros’ criminal record before he pronounced his finding as to guilt. In Hall v Braybrook,[14] Dixon CJ referred to a ‘general rule that a tribunal of fact passing upon the guilt or innocence of a defendant should not be informed of the defendant’s criminal record or bad character or antecedents before the tribunal pronounces a finding of guilt.’[15] This observation of Dixon CJ was applied, in the context of a jury trial, by the Court of Appeal of Western Australia in Narrier v The State of Western Australia.[16] The Court of Appeal said:[17]
In Hall v Braybrook[1956] HCA 30; (1955) 95 CLR 620, Dixon CJ said that the general rule that a tribunal of fact responsible for determining the guilt or innocence of an accused should not be informed of his or her criminal record, bad character or antecedents before the tribunal pronounces a finding of guilt has become a principle which pervades the law governing the conduct of criminal proceedings (627 - 628). His Honour added that all concerned in the criminal law are highly sensitive to any infringement of this principle because of 'the prejudice to the issue of guilt which is thought inevitably to ensue' (628). Also see, to similar effect, the observations of Fullagar J (648). And see, too, Dawson v R[1961] HCA 74; (1961) 106 CLR 1, 16 (Dixon CJ), Phillips v The Queen[1985] HCA 79; (1985) 159 CLR 45, 50 - 51, 55 (Mason, Wilson, Brennan and Dawson JJ), 59 - 60 (Deane J) and the discussion by Hunt AJA (Simpson and Rothman JJ agreeing) in Seymour v The Queen[2006] NSWCCA 206; (2006) 162 A Crim R 576 [46] - [48].
[14](1956) 95 CLR 620, 627.
[15]My emphasis.
[16][2008] WASCA 191.
[17]Ibid [32].
The principle that, generally speaking, a tribunal of fact considering the guilt or innocence of an accused should not even be informed of the accused’s criminal record is not confined to jury trials. It extends to courts of summary jurisdiction.[18]
[18]R v Regal Press Pty Ltd [1972] VR 67; De Romanis v Sibraa [1977] 2 NSWLR 264 esp at 274, 286, 296; Skaramuca v Craft [2005] ACTSC 61 [58]-[82].
It is true that knowledge of an accused’s criminal record will not always disqualify the relevant judicial officer.[19] However, if such knowledge does come to the judicial officer, he or she will usually be required, at least, to recognise the difficulty and to make a discretionary decision about it, giving weight to the abovementioned longstanding and deeply ingrained policy of the law.[20] As his oral reasons show, Magistrate Malhotra did not do that. Hence, in this respect at least, there was error of law on the face of the record.
[19]Skaramuca v Craft [2005] ACTSC 61 [58]-[82] and cases there cited.
[20]Ibid.
In order to reduce the prospect of similar difficulties arising in future cases, I would respectfully suggest that the practice of filing a full copy of the preliminary brief, including the accused’s criminal record, as an exhibit to the affidavit/declaration of service, should cease. Alternatively, steps should be taken within the administration of the Magistrates’ Court to ensure that the copies of criminal records that are included within preliminary briefs (or within full briefs) do not come to the attention of judicial officers determining guilt or innocence until after a finding has been made.
There is one last point. Before the present issue came to light, the second defendant had foreshadowed a submission to the effect that the plaintiff should be denied relief, in the exercise of this Court’s discretion, on the basis that, under Part 3.4 of the Act, and under s 94(2) in particular, the plaintiff could have obtained an automatic rehearing from the Magistrates’ Court by simply applying for one.[21] At the hearing, very properly, Mr Carr did not press that submission. In that regard he acknowledged, as I understood him, that the Magistrates’ Court had not complied fully with its obligations under s 87(4) of the Act in this case. Section 87(4) provides:
[21]Second defendant’s written submissions dated 16 October 2018, [6]-[8].
If the Magistrates' Court finds a charge against a person proved and imposes a sentence in the absence of the person, the court must serve written notice on the person, at the address of the person on the register kept under section 18 of the Magistrates' Court Act 1989, of—
(a) the order of the court; and
(b) their right to apply for a rehearing of the charge.
Note
Part 3.4 provides for a rehearing in certain circumstances. In particular, s 94 provides for automatic rehearing in certain cases.
In this case, the Court Book includes only two documents that might have amounted to a notice under s 87(4). One,[22] entitled ‘Notice of Order Made’, said nothing about any right to apply for re-hearing of the charge. The other,[23] headed ‘Statement of Fines and Penalties Imposed’, said only that ‘if’ the addressee did not attend court for the hearing, the addressee ‘may’ have the right to have this matter re-heard. This second notice appears to be in a standard form. Strictly speaking, it may not be wrong, but it could be misleading, especially to unrepresented persons who did not attend Court and more especially during the period of 28 days immediately following service of the notice. It seems to me that, in a case (like this) where the person charged was absent, a more specific form of notice should be used. In particular, in accordance with the note to s 87(4) set out above and in accordance with s 94 of the Act, the notice given in such a case should say (among other things) that if, within 28 days after the date of service of the notice, the person applies for a re-hearing, the Magistrates’ Court must set aside the findings and order made in the earlier proceeding and re-hear the charge(s).
[22]CB 63.
[23]CB 70.
It was not necessary to deal with any of the other matters raised in the parties’ respective written submissions.
For these reasons, I quashed the decision of the Magistrates’ Court and ordered that the case be reheard in accordance with law. Of course, on any rehearing of the charge against Mr Boros, steps should be taken to ensure that his criminal record does not come to the attention of the judicial officer, whether by way of exposure to the terms of this judgment or otherwise.
Mr Boros waived any claim for costs, and it was ordered that there be no order as to costs.
---
0
10
0