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

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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.

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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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Boros v Magistrates' Court

Details

AGLC: Boros v Magistrates' Court [2019] VSC 258
Case: [2019] VSC 258
Decision Date: 15 April 2019 (Revised reasons published 23 April 2019)

CaseChat Overview and Summary

In the case of Boros v Magistrates' Court, the issue revolved around a summary traffic offence where the accused, not present at the hearing, was found guilty by the Magistrate. A significant factor was the Magistrate's reliance on the accused's criminal record, which was included in the preliminary brief of evidence. This record was seen and read out by the Magistrate as part of his reasons for the guilty finding, a matter which the accused later contested. The court was tasked with determining whether this constituted an error of law apparent on the record, and if so, whether it necessitated the quashing of the conviction.

The legal issues at the core of this case centred on the admissibility and impact of the accused's criminal history on the proceedings, particularly in the absence of the accused. The court had to decide if the Magistrate's use of the criminal record in delivering his reasons amounted to an error of law that was evident on the record. Furthermore, the court needed to consider whether this error was so fundamental that it rendered the proceedings unfair or unjust, potentially implicating jurisdictional errors.

The court concluded that the Magistrate's reliance on the accused's criminal record constituted an error of law that was apparent on the record. The court found that this error was significant enough to warrant the quashing of the conviction. The Magistrate's reading out of the criminal record as part of his reasons, despite the accused not being present, was deemed to have tainted the proceedings. The court did not need to delve into whether there was also a jurisdictional error because the error of law was sufficient to nullify the conviction. The decision was therefore quashed, reflecting the court's stance on the importance of procedural fairness in criminal proceedings.

Orders