| 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 |
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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…
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- AGLC
- Boros v Magistrates' Court [2019] VSC 258
- Case
- [2019] VSC 258
- Decision Date
CaseChat Overview and Summary
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
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Background
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Evidence
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