Brown v State of Victoria
[2023] VCC 1282
•28 July 2023
| IN THE COUNTY COURT OF VICTORIA AT Melbourne COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
GENERAL LIST
Case No. CI-22-04616
| Rohan Michael Brown | Plaintiff |
| v | |
| State of Victoria | Third Defendant |
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JUDGE: | Her Honour Judge Tran | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 1 December 2022, 17 February 2023 and 4 April 2023 | |
DATE OF JUDGMENT: | 28 July 2023 | |
CASE MAY BE CITED AS: | Brown v State of Victoria | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 1282 | |
REASONS FOR JUDGMENT
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Subject:TORT
Catchwords: Tort – false imprisonment – whether valid warrant - summary judgment – whether no real prospects of success
Legislation Cited: Civil Procedure Act 2010 (Vic); County Court Civil Procedure Rules 2018 (Vic); Magistrates’ Court Act 1989 (Vic); Magistrates’ Court Criminal Procedure Rules 2009 (Vic); Criminal Procedure Act 2009 (Vic); Crimes Act 1958 (Vic); Victoria Police Act 2013
Cases Cited:Lysaght Building Solutions Pty Ltd (t/as Highline Commercial Construction) v Blanalko Pty Ltd (2013) 42 VR 27; Mutton v Baker [2014] VSCA 43; Campaspe Investments Pty Ltd v PBP Accounting Solutions Pty Ltd [2015] VSC 26; Fiore v Magistrates’ Court of Victoria [2020] VSC 92; Fiore v Magistrates’ Court of Victoria [2020] VSC 314; Project Blue Sky v Australian Broadcasting Commission [1998] HCA 28; Guss v Commissioner of Taxation [2015] VSC 259; Tipping v R [2023] SASCA 8; Trotter v the State of South Australia & Anor (Unreported, SCSAFC, 28 July 1994, Mohr, Debelle and Nyland JJ); Groom v State of SA [2017] SASFC 35
Judgment: Application granted
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | The plaintiff appeared in person | |
| For the Third Defendant | Mr N Petrie | Victorian Government Solicitors Office |
HER HONOUR:
Background
1On 28 April 2016, Rohan Brown attended at the office of Matthew Guy to make a complaint about police conduct. He became agitated. On his exiting the premises, a glass door was broken.[1] The police were called.
[1]Mr Brown was ultimately convicted of intentionally damage property and unlawful assault in relation to the events of this day – Page 41-42 of Exhibit “CRL-1” to the affidavit of Lavelle sworn 28 November 2022
2On 20 May 2016, Mr Brown telephoned Matthew Guy’s office and spoke to a member of staff. He again became agitated.[2] The police were called.
[2]Mr Brown was ultimately convicted of use a carriage service to menace in relation to the events of this day – Page 43 of Exhibit “CRL-1” to the affidavit of Lavelle sworn 28 November 2022.
3On 3 June 2016 at approximately 9.30am, Rohan Brown was arrested by three police officers and taken to the Ringwood Magistrates’ Court cells. Later that afternoon, he was brought before a magistrate, who revoked his bail on pre-existing charges and remanded him in custody.
4Mr Brown claims that his arrest on 3 June 2016 was unlawful. He has brought proceedings claiming damages for false imprisonment with respect to the actions of the arresting police officers.
5Mr Brown contends that, at the time of his arrest on 3 June 2016, no charges had been filed in relation to the events of 28 April 2016 and 20 May 2016, and that there was no valid warrant for his arrest.[3] Although three different versions of a charge-sheet and warrant dated 27 May 2016 (“the 27 May 2016 Charge-Sheet and Warrant”) were exhibited to affidavits filed with the Court, Mr Brown contends that these documents were fraudulently created sometime after 10 October 2016.[4]
[3]Statement of Claim, paragraphs [4]-[6], [10], [24]-[25] and [27]
[4]Transcript (“T”) of 4 April 2023, T77, Lines (“L”) 17-22; second affidavit of Mr Brown, paragraphs [92] and [94]
6Mr Brown also contends that his arrest was unlawful because:
(a) even if it was issued on 27 May 2016, the 27 May 2016 Charge-Sheet and Warrant was not valid;
(b) he was not taken before a magistrate until after 3.00pm on the day of his arrest, which he contended was not a reasonable time within the meaning of s464A of the Crimes Act 1958 and s65(2) of the Magistrates’ Court Act 1989; and
(c) he was not personally served with the charges for which he was said to have been arrested on 3 June 2016; and was not provided with a copy of those charges until at least July or August 2016.
7Finally, Mr Brown said that, when he was taken before a magistrate at the Ringwood Magistrates’ Court on the afternoon of 3 June 2016:
(a) a police prosecutor appeared, despite knowing that charges were not “in court on 3 June 2016” and he was remanded in custody; and
(b) an application to revoke his existing bail was made by a police officer on the basis of non-existent charges[5] and on that application to revoke bail, a police officer presented, under oath, matters dismissed by the courts on merits as if they were priors, and suggested that Mr Brown was being investigated by counter-terrorism police.[6]
[5]Statement of Claim, paragraph [7]
[6]Statement of Claim, paragraph [7]
8Accordingly, he sought to ascribe liability to the third defendant for the period of his imprisonment after he was remanded in custody by a magistrate.
9The third defendant has applied for summary judgment against Mr Brown. It contends that:
(a) on 27 May 2016, Detective Senior Constable (“DSC”) Colin Lavelle filed four copies of the 27 May 2016 Charge-Sheet and Warrant at the Ringwood Magistrates’ Court. The 27 May 2016 Charge-Sheet and Warrant included three charges arising out of the events of 28 April 2016 and 20 May 2016:
(i)a charge of intentionally and without lawful excuse damaging property (namely a glass door) on 28 April 2016;
(ii)a charge of unlawful assault on 28 April 2016; and
(iii)a charge of using a carriage service in a manner which a reasonable person would regard as menacing on 20 May 2016;
(b) the 27 May 2016 Charge-Sheet and Warrant was issued on the same day by a registrar. This had the effect of commencing Magistrates’ Court proceeding G11505381 under s5(a) of the Criminal Procedure Act 2009;
(c) Mr Brown was lawfully arrested on 3 June 2016 pursuant to the 27 May 2016 Charge-Sheet and Warrant and transported to the Ringwood Magistrates’ Court cells, arriving at approximately 10.49am;
(d) a magistrate then:
(i)in proceeding G11505381, remanded Mr Brown in custody on the charges in the 27 May 2016 Charge-Sheet and Warrant; and
(ii)in proceeding F11178636, revoked Mr Brown’s bail on pre-existing charges; and
(e) the decision to remand Mr Brown in custody was thus made by a magistrate, not a police officer, and, so, from that point on, could not give rise to liability for false imprisonment arising from the conduct of any police officer.
10To succeed in its application for summary judgment, the third defendant must demonstrate that Mr Brown’s claim against it has no real prospect of success.[7] This is a test which is more liberal than the former tests of “hopeless” or “bound to fail”. However, it is, nevertheless, a high hurdle for the State of Victoria to overcome. As stated by Warren CJ and Nettle JA in Lysaght Building Solutions Pty Ltd (t/as Highline Commercial Construction) v Blanalko Pty Ltd:[8]
“… the power to terminate proceedings summarily should be exercised with caution and thus should not be exercised unless it is clear that there is no real question to be tried”.
[7]Section 62 of the Civil Procedure Act 2010
[8](2013) 42 VR 27, 39-40 [35]
11The critical factual issue on which the third defendant’s application turns is whether a warrant to arrest Mr Brown was issued on 27 May 2016. If Mr Brown’s contention that no warrant was issued on 27 May 2016 is tenable, then summary judgment ought not be granted.
12There are four further relevant issues raised by the material filed with the Court and the contentions of the parties:
(a) whether (assuming it was issued) the 27 May 2016 Charge-Sheet and Warrant was valid;
(b) whether a failure to personally serve the 27 May 2016 Charge-Sheet and Warrant on Mr Brown could render the arrest unlawful;
(c) whether there was an unreasonable delay between Mr Brown’s arrest and his being brought before the Magistrates’ Court; and
(d) whether any liability for unlawful arrest survived Mr Brown being remanded in custody by a magistrate.
Procedural background to application
13This proceeding was commenced by Writ and Statement of Claim filed on 31 May 2022 in the Supreme Court. The Writ named 11 defendants, including Matthew Guy; a member of Matthew Guy’s staff; various police defendants; a magistrate; a Magistrates’ Court registrar; and Victoria Legal Aid.
14A summons returnable on a date to be fixed was filed on 27 September 2022 by the then named third, fourth, fifth, sixth, seventh and ninth defendants (together, “the police defendants”). At the time, the police defendants consisted of “Victoria Police (ABN 63 446 481 493)” (the then third defendant) and the various individual police officers (the fourth, fifth, sixth, seventh and ninth defendants). By their summons, the police defendants applied for:
(a) an order under r23.01(1) of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) (“SC Rules”) that the entirety of the Statement of Claim be dismissed or stayed as against the police defendants;
(b) further, or alternatively, an order under r23.02 of the SC Rules that the entirety of the Statement of Claim be struck out;
(c) further, or alternatively, summary judgment under s62 and s63 of the Civil Procedure Act 2010 (Vic) in favour of the police defendants;
(d) further, or alternatively, an order under r9.06 of the SC Rules and s75(1) of the Victoria Police Act 2013 (Vic), removing the police defendants from the proceeding; and
(e) costs.
15The Summons was supported by an affidavit of Mr Matthew Hocking, Victorian Government Solicitor, sworn 19 August 2022.
16By orders made 5 October 2022, John Dixon J transferred the proceeding to the County Court of his own motion under s30(2) of the Courts (Case Transfer) Act 1991 (Vic).
17At the direction of a Deputy Registrar, the police defendants refiled their summons in the County Court on 29 November 2022.[9] The refiled Summons was to the same effect as the original Summons, save that it referred to the relevant rules in the County Court Civil Procedure Rules 2018 (Vic) (“the Rules”), and was returnable before me on 1 December 2022. On the same day, the police defendants filed an affidavit of DSC Lavelle sworn 28 November 2022 and an affidavit of Detective Inspector (“DI”) Steven Cooper sworn 28 November 2022, which they sought to rely upon in support of their summons at the hearing on 1 December 2022. The police defendants also sought to rely upon two affidavits of Emma Roberts which had been filed on behalf of the eighth and tenth defendants (“the Magistrates’ Court defendants”) on 28 November 2022 and 1 December 2022.
[9]The Summons was received at 5.58pm on 28 November 2022 and so is deemed filed on 29 November 2022.
18At the return of the Summons on 1 December 2022, I made an order under r9.06 of the Rules, substituting the State of Victoria for the third defendant and directing that the remaining police defendants cease to be parties. In making this Order, I accepted the submission of the police defendants that, in accordance with the Victoria Police Act 2013, the proper defendant to a claim for false imprisonment arising from an arrest by members of the Victoria Police was the State of Victoria. Given the late service of supporting affidavit material, I otherwise adjourned the police defendants’ Summons to 17 February 2023, with directions for the filing and service of further material.
19Further material was then filed by both Mr Brown and the third defendant.
20On 17 February 2023, I granted applications for summary judgment which had been made by the second defendant, eighth and tenth defendants and eleventh defendant. I also made an order by consent, deeming the proceeding against the first defendant discontinued with no order as to costs. That left the claim against the third defendant as the only remaining live claim in the proceeding.
21In relation to the (now) third defendant’s application for summary judgment, I raised concerns about the adequacy of the evidence relied upon, particularly in relation to the existence of the 27 March 2016 Charge-Sheet and Warrant. I adjourned the further hearing of the third defendant’s Summons to 4 April 2023, and made orders for the filing and service of further material.
22Mr Brown is self-represented. When this matter first came on for hearing, Mr Brown informed the Court that he had been diagnosed with autism and post-traumatic stress syndrome. Mr Brown presented as intelligent, articulate and well-researched, although, at times, he struggled to stay focused on the issues in dispute in this proceeding. He was clearly very upset at his arrest on 3 June 2016. His belief that he had been unfairly targeted by the police, on this occasion and others, appeared to be a source of great distress to him. This led to him being emotional at times, which, on occasion, veered into behaviour which could be interpreted as threatening. At the first hearing, he was warned that threatening behaviour would not be tolerated.
23The Court endeavoured to treat Mr Brown with respect and to accommodate for his neurodivergence and lack of legal training, by explaining both the procedural and substantive issues in the proceeding; and allowing him the opportunity to provide supplementary affidavit material and written and oral submissions. Overall, the Court found Mr Brown to be appropriately respectful and engaged; and willing to listen and adjust his behaviour when provided a clear explanation of the Court’s expectations.
24At times, Mr Brown found it difficult to clearly differentiate between admissible evidence and submissions. I have made some allowance for this when considering the material he has filed. I am conscious that Mr Brown should not be shut out from a claim which has a real prospect of success because of his lack of legal training. On the other hand, Mr Brown was given ample opportunity to present material in response to the material relied upon by the third defendant, and availed himself of that opportunity. There is no benefit to Mr Brown, or the administration of justice, in prolonging this proceeding if it has no real prospects of success.
Review of relevant evidence
25The following affidavits were relied upon in relation to this application:
(a) affidavit of Mr Hocking, Victorian Government Solicitor, sworn 19 August 2022;
(b) affidavit of Mr Hocking sworn 29 November 2022;
(c) affidavit of DI Cooper sworn 28 November 2022;
(d) affidavit of DSC Lavelle sworn 28 November 2022;
(e) affidavit of DSC Lavelle sworn 30 March 2023;
(f) affidavit of Detective Leading Senior Constable (“DLSC”) Joshua David Whitby sworn 30 March 2023;
(g) affidavit of Ms Roberts, solicitor for the eighth and tenth defendants, sworn 28 November 2021;
(h) affidavit of Ms Roberts sworn 1 December 2022;
(i) affidavit of Ms Roberts sworn 27 January 2023;
(j) affidavit of Ms Roberts sworn 17 March 2023;
(k) affidavit of Mr Brown affirmed 10 January 2023; and
(l) affidavit of Mr Brown affirmed 3 April 2023.
26In addition, a pdf copy of the Magistrates’ Court file in proceeding G11505381, as produced to the Court by the Magistrates’ Court on 24 March 2023, was tendered in evidence.
27Both Mr Brown and the third defendant filed voluminous material, much of which was not relevant to the issues in this application. I have read and considered all the affidavits, submissions and other documents relied upon by the third defendant and Mr Brown. In these reasons, I will focus on those aspects of the evidence which are relevant to the question of whether or not Mr Brown’s claim against the third defendant for compensation for false imprisonment has a real prospect of success.
Mr Brown’s affidavits affirmed 10 January 2023 and 3 April 2023
28In Mr Brown’s first affidavit, sworn 10 January 2023 he explains that:
(a) he was never served with the charges which lead to his arrest on 3 June 2016;[10]
[10] Plaintiff’s first affidavit, paragraph [66]
(b) this is confirmed by the following:
(i)no charges were recorded as being in his prisoner property on 3 June 2016; [11]
[11] Plaintiff’s affidavit affirmed 10 January 2023 (“Plaintiff’s first affidavit”), paragraphs [36]-[38], [68]-p[69]
(ii)the charges which were in his prisoner property on 14 June 2016 were separate charges laid on 5 June 2016;[12] and
[12] Plaintiff’s first affidavit paragraphs [36], [39] and [70]
(iii)there was no affidavit of service with respect to the charges; [13]
[13] Plaintiff’s first affidavit, paragraphs [40] and [75]
(c) the charges were first provided to him in July or August 2016, after his legal representative met with DSC Lavelle;[14] and
(d) after his release on bail, he applied for access to the Magistrates’ Court file. A week later, he received a copy of the file which contained a charge-sheet dated 27 May 2016;[15]
(e) the charge-sheet dated 27 May 2016:
(i)was not in the possession of the Victoria Legal Aid (“VLA”) representatives who met with Mr Brown on 3 and 20 June 2016; [16]
(ii)was not in documentation provided to Mr Brown’s legal representative after he met with DSC Lavelle; [17]
(iii)was not exhibited to an affidavit in opposition to bail dated 13 September 2016;[18] and
(iv)was not in the “prosecution by Victoria Police on behalf of Colin Lavelle” on 18 September 2017.[19]
[14] Plaintiff’s first affidavit, paragraphs [6] and [72]
[15] Plaintiff’s first affidavit, paragraph [73]
[16] Plaintiff’s first affidavit, paragraph [74]
[17] Plaintiff’s first affidavit, paragraph [74]
[18] Plaintiff’s first affidavit, paragraph [74]
[19] Plaintiff’s first affidavit, paragraph [74]
29In his second affidavit affirmed 3 April 2023, Mr Brown describes his arrest on 3 June 2016 as follows:
“603rd of June 2016 the Plaintiff wakes up at the home of his oldest friend and family. While assisting with loading a trailer with his friend (born in Mauritius, wife born in Zambia) and his friend’s nephew, a carpenter. While doing this the plaintiff’s other closest friend George Koromilas (1st Generation Australian) arrives in the Plaintiffs work vehicle. Soon after George arrives the Plaintiff is approached by Detectives Kos, Whitby and Brown and taken against his will to their unmarked vehicle, transported to the Ringwood Court Cells where the Plaintiff is locked up without charge. George asks them for the warrant which the refuse threatening George before he backs down.
61 While in custody, the Plaintiff is summons to a locked room with window to a VLA representative who explains that she has no charges however an application to revoke bail with charges handwritten on the back. The Plaintiff elects to present his own bail application under advice that if VLA does the application the Plaintiff may not apply for bail again.
62 Before Magistrate Denise Livingstone in application to bail the Plaintiff provides the address of George koromilas who has lived at 37 Alfreda Avenue in Bulleen since 2001. A PSO stands up in court and provides the false claim that George is homeless and that the address is false.
63 Detective Church appears under oath to oppose bail and he presents the Pitts decisions dismissed on merit from 2012-2014 as if they are prior convictions and makes the claim to the court that the Plaintiff is under investigation by the counter terrorism police.
64 Denise Livingstone denied bail despite there being no arrest warrant, charges and by virtue of those omissions, no valid application to revoke bail.”[20]
[20]Plaintiff’s affidavit affirmed 3 April 2023 (“Plaintiff’s supplementary affidavit”), paragraphs [60]-[64]
30Mr Brown states that the first time he saw charges relating to the incidents on 28 April 2016 and 20 May 2016 was in August 2016, after his solicitor obtained them from DSC Lavelle in a meeting.[21]
[21]Plaintiff’s supplementary affidavit, paragraph [75]
31In relation to when he first received a copy of the 27 May 2016 Charge-Sheet and Warrant, he states as follows:
“92.10th October 2016 the Plaintiff spoke with David Howard the Principal Registrar at the Ringwood Magistrates Court and made enquiry about the nature of the arrest on the 3rd of June 2016 and David Howard at the time while referring to the system on a computer at the Heidelberg Court, said that it was for a bench warrant.
93. 14th October 2016 the Plaintiff makes application before HH S. Amour for the court files pertaining to the 3rd of June 2016 imprisonment.
94. 24th October 2016 the Plaintiff receives and observes for the first time the first version of the 27th employee number and signature of Peter Kos at the bottom of it. This is a different Charge Sheet and Warrant than the one provided to the court by Minister Allison for defendant 8 and 10 on the 17th of February 2023, as this version is the Executable copy whereas the copy provided by Minister Allison purports to be the Original even though it is not contained in the court file. Not on the 24th of October 2016 and not on the 24th of March 2023.”[22]
[22]Plaintiff’s supplementary affidavit, paragraphs [92]-[94]
32In addition, he states that orders made by Magistrate Holzer on 14 December 2017 calculate the plaintiff’s time served as 160 days, when, in fact, at that time he had served 172 days. He contends that there are twelve days of time served missing, which he attributes to the fact the charges were not filed with the Magistrates’ Court until 15 June 2016.[23]
[23] Plaintiff’s supplementary affidavit, paragraphs [110]-[114] and [130]; and Exhibit RMBSCV-001-2022 7
First affidavit of Mr Matthew Hocking sworn 19 August 2022
33The third defendant’s summons for summary judgment was initially supported by an affidavit sworn by the Victorian Government Solicitor, Mr Hocking, on 19 August 2022. The exhibits to this affidavit included:
(a) a statement dated 19 September 2016 of Detective Sergeant (“DS”) Peter Leo Kos (then the fourth defendant and represented by the Victorian Government Solicitors Office (“VGSO”)) (“the Kos statement”);
(b) a statement dated 30 June 2017 of DLSC Whitby (then the sixth defendant) (“the Whitby statement”);
(c) a charge-sheet dated 15 June 2016; and
(d) a preliminary brief – statement made by informant dated 19 June 2016, written by DSC Lavelle (“the Lavelle preliminary brief”).
34Based on information provided in these documents, Mr Hocking states that:
(a) Mr Brown was arrested on 3 June 2016, at approximately 8.35am, at 7 Central Avenue, North Dandenong:
“… on suspicion of:
(a)unlawful assault of Ms Vita Bresevic on 20 May 2016 by using a carriage service in a manner which a reasonable person would regard as being menacing.”;[24]
(b) after his arrest on 3 June 2016, Mr Brown was remanded in custody at the Ringwood Magistrates’ Court holding cells and later remanded at the Ringwood Police station cells; and
(c) on 15 June 2016, Mr Brown was charged with:
(i)intentionally and without lawful excuse damaging property on 28 April 2016;
(ii)unlawful assault of Ms Vita Brecevic on 20 May 2016; and
(iii)using a carriage service in a manner which a reasonable person would regard as being menacing.
[24]First affidavit of Mr Matthew Hocking, dated 19 August 2022, paragraph [6(a)]
35There is no mention in this affidavit of the 27 May 2016 Charge-Sheet and Warrant, or of any associated charges being filed in the Magistrates’ Court, prior to 15 June 2016.
36The Kos statement appears, on its face, to have been prepared in relation to charges against Mr Brown’s friend, Mr George Koromilas, who is described in the statement as the “accused”. The statement describes Mr Brown’s arrest as follows:[25]
“At about 9.35am I was involved in the arrest of Rohan BROWN at 7 Central Ave, North Dandenong. Rohan BROWN was arrested in the front yard of the premises and I noted that there were a number of other persons in and around the front yard at the time of the arrest.
A person, who I now know to be the accused George KOROMILAS, was one of those other persons at 7 Central Avenue, North Dandenong. At this time I did not know his name, however I noted that he followed me around and remained close to me whilst I was dealing with Rohan BROWN. Detective BROWN asked him his name and he refused to provide it to her.
When placing Rohan BROWN in the police vehicle, the accused asked me where I was taking him. I replied that we were taking him to Ringwood Police Station.
...
I was then involved in the administrative processing of Rohan BROWN at the court and at Ringwood Police Station.”
[25]First affidavit of Mr Hocking sworn 19 August 2022, bundle exhibit pages 8-11
37There is no mention in the Kos statement of the 27 May 2016 Charge-Sheet and Warrant.
38The Whitby statement also appears, on its face, to have been prepared in relation to charges against Mr Koromilas. It describes Mr Brown’s arrest as follows:[26]
[26]First Affidavit of Mr Hocking sworn 19 August 2022, bundle exhibit pages 11-13
“At approximately 9:30am, Detective Sergeant KOS and Detective Senior Constable BROWN and I arrived at 7 Central Avenue, Dandenong North. ...
I observed BROWN standing outside the address as we parked our vehicle in front of a neighbouring property.
Detective Sergeant KOS subsequently arrested BROWN in the driveway of 7 Central Avenue, in the presence of Detective Senior Constable BROWN and myself.
BROWN was physically co-operative, however appeared hostile towards Police. As Detective Sergeant KOS administered BROWN’s caution and rights, BROWN stated that he “comprehends”.
After BROWN was arrested by Detective Sergeant KOS, BROWN requested to obtain his shoes from inside the premise and his socks from a vehicle parked on the street. As BROWN walked to the vehicle where his socks were located, he bumped his head on a trailer parked in the driveway. BROWN struck an open flap on the trailer as he passed it.
BROWN subsequently removed his socks from a grey Ford station wagon, displaying registration ZFW147, parked on the street.
At 9:40am, Detective Sergeant KOS, Detective Senior Constable BROWN, BROWN and I left the address. ...
...
At 10:00am I conveyed Detective Sergeant KOS, Detective Senior Constable BROWN and BROWN to the Ringwood Magistrates’ Court.”
39Again, there is no mention of the 27 May 2016 Charge-Sheet and Warrant.
40The Lavelle preliminary brief states:
“1.At approximately 9.30 AM on the 28th of April, 2016, the accused in this matter Rohan BROWN (16/04/1970), has attended at the office of Matthew GUY MP.
2. Upon attending at the office of Mr. GUY the accused has stated that he has been accused of a crime that he did not commit and that it was a case of mistaken identity. The accused was demanding assistance from Mr. GUY, who was not present in the office at the time.
3. Staff members present at the time have instructed the accused that this wasn’t a matter for their office and that they were not able to assist him. The accused was told that he should report the matter to the Police.
4. The accused has then stated that if Mr. GUY could not help him then it was his constitutional right to go on a shooting spree, this comment caused fear to victim ADDAMO. (Charge 2).
5. The accused has then pushed over a pamphlet display before walking to the front door of the office and smashing the front glass door with his right fist before exiting the office and walking from the centre. (Charge 1).
6. The accused was identified by CCTV that showed the accused leaving the centre after the incident.
7. At approximately 10.00 PM on Friday the 13th of May, 2016, the accused was arrested in relation to the offences and was interviewed at the Footscray Police Station, where he denied all allegations put to him in relation to the damage caused at the office of Matthew GUY.
8. On Friday the 20th of May, 2016, at approximately 9.30 AM, the accused has called the office of Matthew GUY and spoken to the office attendant.
9. During this phone call the accused has become agitated and aggressive and demanded to speak to Matthew GUY MP. The attended has stated that she didn’t have his diary and didn’t know when he would be available next. The accused has stated that he had a human rights issue the Mr GUY knew about and was doing nothing about.
10. The accused then stated that “it is okay to have the fucking cops come around when it’s about him.” The accused then stated that “they were quick to come when your glass got smashed.”
11. At this point the office assistant wrote down the phone number that was being displayed on the office phone being, 0435 798 939. When the accused was asked what his name was, the accused stated “Rohan”. (Charge 3).
12. Checks by Police in relation to this phone number revealed that it belonged to the accused.
13. On Friday the 3rd of June, 2016, the accused was subsequently arrested in relation to the menacing phone call to the office of Matthew GUY, where he was remanded in custody.”
41There is no reference in the Lavelle preliminary brief to the 27 May 2016 Charge-Sheet and Warrant. Mr Brown is described as having been arrested in relation to “the menacing phone call to the office of Matthew GUY”[27] (i.e.: in relation to only one of the three charges contained in the 27 May 2016 Charge-Sheet and Warrant). It is possible that this is the source of Mr Hocking’s evidence that Mr Brown was arrested “… on suspicion of unlawful assault of Ms Vita Bresevic on 20 May 2016 by using a carriage service in a manner which a reasonable person would regard as being menacing…”, although the wording used is quite different and Mr Hocking appears to have amalgamated two of the three charges against Mr Brown by adding the words “unlawful assault” to the offence of using a carriage service in a manner which a reasonable person would regard as being menacing.
[27]Preliminary Brief – Statement Made by informant at paragraph [13], exhibit CRL-2, attached to the DSC Lavelle’s Further Affidavit in Support of Summons, dated 30 March 2023
42The charge-sheet dated 15 June 2016 lists DSC Lavelle as the informant and includes the following three charges:
“The accused at BULLEEN on 28/04/2016 intentionally and without lawful excuse did damage property namely 1 x Glass entry door belonging to State Government of Victoria and valued at $1,000.00.
The accused at BULLEEN on 28/04/2016 did unlawfully assault Vita BRECEVIC.
The accused at BULLEEN on 20/05/2016 did use a carriage service in a manner which a reasonable person would regard as being menacing, namely Vita BRECEVIC.”
First affidavit of Emma Roberts sworn 28 November 2021
43On 28 November 2021, Emma Roberts, the solicitor acting for the Magistrates’ Court defendants, swore an affidavit in support of her clients’ application for summary judgment. She states in her affidavit that:[28]
“I believe based on the affidavit of Matthew Hocking dated 19 August 2022 and the following documents which are part of the bundle affidavit:
(a) order granting bail, made by Magistrate McNamara on 1 April 2016.
(b) order revoking bail, made by Magistrate Livingstone on 3 June 2016.
(c) order remanding the accused to 20 June 2016, made by Magistrate Livingstone on 3 June 2016;
that:
(a) the plaintiff was on bail from 1 April 2016 to 3 June 2016;
(b) an application was made to the Magistrates Court to revoke his bail;
(c) on 3 June 2016 Magistrate Livingstone made an order revoking his bail and remanding the accused to 20 June 2016.”
[28]Affidavit of Emma Roberts sworn 28 November 2021, paragraph [3]
44The orders referred to above were not in fact exhibited to the affidavit. A charge-sheet dated 15 June 2016 is exhibited. No mention is made of the 27 May 2016 Charge-Sheet and Warrant, nor the three charges said to be included in that document.
First affidavit of Detective Senior Constable Colin Lavelle sworn 28 November 2022
45In an affidavit sworn 28 November 2022, DSC Lavelle states:
“6.On 27 May 2016, I attended Ringwood Magistrates’ Court to apply for the issue of a warrant to arrest the plaintiff. I filed a Charge-Sheet and Warrant to Arrest the plaintiff with the Ringwood Magistrates’ “Court which detailed three charges against the plaintiff. These related to:
(a)intentionally damage property;
(b)unlawful assault; and
(c)use carriage service to harass.
(collectively, the ‘charges’).
7.The Ringwood Magistrates’ Court subsequently issued a Charge-Sheet and Warrant for arrest of the plaintiff.
Now produced and shown to me and set out at pages 33 to 34 of the exhibit bundle ‘CRL-1’ is a true and correct copy the Charge-Sheet and Warrant dated 27 May 2016.
C. CHARGES LAID
8I understand from a review of the certified extracts of court orders made at the Magistrate’s Court of Victoria at Ringwood on 3 June 2016 that the plaintiff was arrested and brought before the Ringwood Magistrates’ Court on 3 June 2016 on the Charge-Sheet and Warrant to arrest in relation to the charges.
Now produced and shown to me and set out at pages 35 to 37 of the exhibit bundle ‘CRL-1’ is a true and correct copy of the certified extract of the Ringwood Magistrates’ Court order made on 3 June 2016, dated 24 June 2021 (‘certified extracts dated 24 June 2021’).
9.I was not present when the plaintiff was arrested and initially brought before the Ringwood Magistrates’ Court.
D. BAIL
10.I understand from review of the certified extracts dated 24 June 2021 that the plaintiff made an application for bail on 3 June 2016 which was refused. I was not present when the bail application was made.
Now produced and shown to me and set out at pages 35 to 37 of the exhibit bundle ‘CRL-1’ is a true and correct copy of the certified extract of the Ringwood Magistrates’ Court order made on 3 June 2016, dated 24 June 2021 (‘certified extracts dated 24 June 2021’).
...
G. CHARGE SHEETS AND LEAP RECORDS
17.On 29 May 2016 I commenced a period of leave and returned to work on 12 June 2016.
18.On 15 June 2016, I prepared the brief of evidence. The plaintiff was charged with the following offences:
(a)intentionally and without lawful excuse damaging property on 28 April 2016;
(b)unlawful assault of Ms Vita Brecevic on 20 May 2016; and
(c)using a carriage service in a manner which a reasonable person would regard as being menacing.
Now produced and shown to me and set out at pages 1-32 of the exhibit bundle ‘CRL-1’ is a true and correct copy of the brief of evidence dated 15 June 2016.
19.When preparing the brief of evidence I could not locate the original Charge and Warrant to arrest. I therefore prepared a charge sheet and dated this as 15 June 2016. The reason for this was so the prosecutor would know what the plaintiff was charged with. These charge sheets were never filed with the Court, as the Court already had the Charge-Sheet and Warrant dated 27 May 2016.
20.On 15 June 2016 I sent a fax to Central Data Entry Bureau (CDEB), in order for the charges to be entered into the LEAP records. LEAP is the Law Enforcement Assistance Program used by the Victoria Police for case management.
21.I was unaware that that LEAP was updated to show the date the plaintiff was charged as 15 June 2016.”
46The charge-sheet and warrant described in paragraph 6 of DSC Lavelle’s first affidavit is the 27 May 2016 Charge-Sheet and Warrant. This is the first mention of the 27 May 2016 Charge-Sheet and Warrant in the affidavits relied upon by the third defendant. The copy exhibited to DSC Lavelle’s first affidavit contains the following three charges:
“1The accused at Bulleen on 28/04/2016 intentionally and without lawful excuse did damage property namely glass door belonging to State Government of Victoria and valued at $1,000.
2The accused at Bulleen on 28/04/2016 did unlawfully assault Vita BRECEVIC.
3.The accused at Bulleen on 20/05/2016 did use a carriage service in a manner which a reasonable person would regard as being menacing, namely Vita BRECEVIC.”
Fig 1: First page of 27 May 2016 Charge-Sheet and Warrant exhibited to DSC Lavelle’s first affidavit
47The following can be noted about this version of the 27 May 2016 Charge-Sheet and Warrant:
(a) the first charge is set out on the first page (Fig 1), the second page contains the two further charges;
(b) in the top-left corner of Fig 1 appear the words “Accused Copy – Bring this with you to Court”;
(c) in the top-right corner of Fig 1 appears “Form 5 Rule 11”;
(d) the grounds for applying for a warrant are stated to be that the accused does not have a stable address; the accused’s behaviour is escalating; and there are concerns that threats may be carried out;
(e) the box provided to specify that evidence has been given on oath has been ticked;
(f) none of the provided boxes for “grounds” are ticked;
(g) no details for the grounds are provided in the rectangle to the right of the checkboxes for grounds;
(h) no date is entered in the date box; and
(i) in faint writing, in the bottom left corner, “3.06.2016 10:26:05 AM” appears.
48The exhibit to the DSC Lavelle’s first affidavit includes three pages which are described as a “copy of the certified extract of the Ringwood Magistrates’ Court order made on 3 June 2016, dated 24 June 2021”.[29] Section 18(5) of the Magistrates’ Court Act provides that:
“(5)A document purporting to be an extract from the register and purporting to be signed by a registrar who certifies that in his or her opinion the extract is a true extract from the register is admissible in evidence in any proceedings and, in the absence of evidence to the contrary, is proof of the matters appearing in the extract.”
[29] Pages 35-37 of exhibit CRL-1 to the first affidavit of DSC Lavelle
49Each of the three pages is headed “CERTIFIED EXTRACT”. However, none bear the signature of a registrar – i.e.: none of the three pages purport “to be signed by a registrar who certifies that in his or her opinion the extract is a true extract from the register” within the meaning of s18(5) of the Magistrates’ Court Act. These pages should not have been described as a certified extract in DSC Lavelle’s first affidavit.[30]
[30]The fact that these documents are not certified extracts of the Orders had also been previously pointed out by Mr Brown in an email dated 10 July 2021, which is included in the exhibit bundle to the affidavit of DI Cooper at page 165.
50The three pages each relate to a different charge. These charges are abbreviated forms of the charges in the 27 May 2016 Charge-Sheet and Warrant. Each of the pages contains the same order, stated to be made by Magistrate Livingstone in Magistrates’ Court proceeding G11505381, remanding Mr Brown to the Ringwood Magistrates’ Court on 20 June 2016 at 10.00am.
In the bottom left corner, each page bears a date of 24 June 2021, which is presumably the date the document was printed. In the section “How before the Court” the words “CHARGE AND WARRANT TO ARREST” appear. The charges listed reflect the three charges contained in the 27 May 2016 Charge-Sheet and Warrant. Under the heading “Court Order”, it is recorded that:
“Remanded to RINGWOOD MAGISTRATES’ COURT on 20/06/2016 10:00am
Custody Management Issues:
The accused may be at risk due to the following:Psychiatric illness
Other:
DIAGNOSED WITH PTSD AND DEPRESSION AND HAS REFUSED ANTIDEPRESSANTS AND IS ON BETA BLOCKERS. APPEARS TO HAVE SOME DISORDERED THINKING. PLEASE SEND TO MAP AND PROVIDE URGENT PSYCHIATRIC ASSESSMENT AND TREATMENT. HE REFUSED REPRESENTATION
Recommend all reasonable assessment and supervision to ensure safe custody.
Bail refused.
Refusal grounds are:failure to show cause
unacceptable risk that applicant would:commit an offence whilst on bail
endanger the safety and welfare of members of the public
ALLEGED OFFENDING ON BAIL INCLUDING THREATENING AND VIOLENT DAMAGING PROPERTY AND PRESENTS RISKS TO SAFETY”
Affidavit of Detective Inspector Steven Cooper
51On 28 November 2022, DI Cooper swore an affidavit which (among other things) exhibits three documents which are described as certified extracts of orders made 3 June 2016.[31] They each bear the date of 24 June 2021 in the bottom–left corner, and appear to be the same as those exhibited to the first DSC Lavelle affidavit. As with the three pages exhibited to DSC Lavelle’s first affidavit, the exhibited documents do not bear the signature of a registrar certifying that, in his or her opinion, they are a true extract from the Register of the court. They should not have been described as certified extracts in DI Cooper’s affidavit.
[31]Affidavit of DI Steven Cooper sworn 28 November 2022, exhibit bundle page 1-3
52DI Cooper also exhibits a “VPR0088 - Person Custody Location Search”, which records Mr Brown arriving at Ringwood Court holding Rooms at 10.14am on 3 June 2016 and at Metropolitan Remand Centre at 5.24pm on 3 June 2016.[32]
[32]Affidavit of DI Cooper sworn 28 November 2022, exhibit bundle page 4
53DI Cooper also explains that, by early 2021, he was responsible for requesting amendments to Mr Brown’s LEAP records in the following circumstances:
“6.I understand from review of Victoria Police Custody History records, the plaintiff was initially taken to Ringwood Court Holding Rooms on 3 June 2016 and was transferred to the Heidelberg Police Station cells later that day.
...
7.In early 2021 I became aware due to correspondence from the plaintiff, that the LEAP records regarding the above were showing the date the plaintiff was charged on 15 June 2016. I knew this to be the incorrect date by review of:
(a)court records, showing that the plaintiff was brought before the Ringwood Magistrates’ Court on 3 June 2016 by Charge and Warrant to arrest; and
(b)custody records from Ringwood Court Holding Cells, Heidelberg Police Station cells and Victoria Police electronic records.
...
8.I spoke to Detective Senior Constable Lavelle who was the informant in the matter resulting in the plaintiff’s arrest. I asked him what happened in relation to the charge date and he explained to me:
(a)the Plaintiff was arrested on 3 June 2016 on Charge and Warrant to arrest;
(b)on return from leave when preparing the brief of evidence he could not locate the original Charge and Warrant to arrest. He told me he created a charge sheet to include in the brief and dated this as 15 June 2016, so the charge sheet would not be backdated; and
(c)he then faxed the charge sheet to the Central Data Entry Bureau (CDEB) so LEAP would be updated.
9.I formed the opinion that the LEAP records needed to be amended to rectify the mistake and show the correct date for the charge of the plaintiff on 3 June 2016.
10.On or about 7 July 2021 I telephoned the CDEB manager and provided my approval for the amendment to be made to LEAP record of the date the plaintiff was charged from 15 June 2016 to 3 June 2016. The change was made immediately.”
54DI Cooper does not explain why he requested the charge date be changed to 3 June 2016, rather than 27 May 2016 (the date that the third defendant contends that the 27 May 2016 Charge-Sheet and Warrant was filed).
55DI Cooper states that he subsequently wrote to Mr Brown and “explained the incorrect details on LEAP pertaining to the plaintiff’s arrest and remand to custody on 3 June 2016”.[33] That letter is dated 9 July 2021 and states:[34]
“I am writing to address and remedy an administrative error which has resulted in the incorrect date being recorded in Victoria Police’s LEAP system. On the 3rd of June 2016 you were arrested on a charge and warrant in respect to charges of Intentionally Damage Property, Unlawful Assault and Use Carriage Device to Harass and taken before the Ringwood Magistrates Court. This date is supported by the Court Extracts which the court used to have the matter listed and the charges linked via Court Link.
Victoria Police’s LEAP system has the charge date recorded as 15th June 2016; this is an acknowledged error caused by the informant faxing through incorrectly dated reports to LEAP data entry staff.
Victoria Police has an obligation to correct this mistake, update the records and inform you of the change.
On the 21st of September 2016, you were released on bail in the Supreme Court of Victoria in respect to these matters, with the charges resolved at the Heidelberg Magistrates Court on the 18th of September 2017. In sentencing the Magistrate noted, “that Rohan Brown spent 111 days on remand in relation to these offences and it is inappropriate to impose a sentence of imprisonment or to impose further penalty”. These comments support that the Magistrate calculated the charge date as being 3rd of June 2016.
It is further acknowledged that Victoria Police has used the 15th of June 2016 in a number of subsequent documents, including the Supreme Court affidavit prepared for bail application heard on the 21st September 2016. Despite the acknowledged error, it is noted that the respective courts have always viewed the charge date as the 3rd of June 2016.
I have taken the opportunity to amend the LEAP record which now correctly records the charge date to be 3rd June 2016 and a copy is attached for your records.”
(Emphasis added.)
[33]Affidavit of DI Cooper sworn 28 November 2022, paragraph [11].
[34]Affidavit of DI Cooper sworn 28 November 2022, exhibit bundle page 48
56Again, there is no explanation for why the date of charge is changed to 3 June 2016, rather than 27 May 2016, although the letter does refer to the fact that Mr Brown was arrested on a warrant.
Second affidavit of Mr Matthew Hocking sworn 29 November 2022
57On 29 November 2022, Mr Hocking swore a supplementary affidavit. In that affidavit he states:
“5I refer to my affidavit sworn 19 August 2022 (19 August Affidavit) and the contents therein, which was previously filed in the Supreme Court on 27 September 2022.
6On 29 November 2022, I was provided and read a copy of:
(a)Affidavit of Senior Constable Colin Lavelle, sworn on 28 November 2022; and
(b)Affidavit of Inspector Steven Cooper, sworn on 28 November 2022.
7As a result of reading the Affidavits of Senior Constable Lavelle and Inspector Cooper, I became aware that an incorrect date was noted on certain charge sheets relating to the plaintiff. I referred to these charge sheets in paragraph 8 of my 19 August Affidavit and copies of these charge sheets were attached to the 19 August Affidavit at MDH-1 pp 15-16.
8At paragraph 8 of my 19 August Affidavit I incorrectly stated the plaintiff was charged with offences on 15 June 2016. Paragraph 8 should state that the plaintiff was brought before the Ringwood Magistrates’ Court with charges for the following offences on 3 June 2016:
(a)intentionally and without lawful excuse damaging property on 28 April 2016;
(b)unlawful assault of Ms Brecevic on 28 April 2016; and
(c)using a carriage service in a manner which a reasonable person would regard as being menacing on 20 May 2016.”
Second affidavit of Ms Emma Roberts sworn 1 December 2022
58On 1 December 2022, Ms Roberts swore a supplementary affidavit. In that affidavit she notes that her first affidavit omitted to exhibit orders made by Magistrate McNamara on 1 April 2016 and orders made on 3 June 2016 by Magistrate Livingstone revoking bail and remanding Mr Brown to 20 June 2016. The Orders now exhibited by Ms Roberts are orders made on 3 June 2016 on charges different to those the subject of the 27 May 2016 Charge-Sheet and Warrant. They are not certified.
59Ms Roberts also states:
“Since making my initial affidavit, further documents relevant to the defendants’ summons have also since been located, including:
(a) extract concerning warrant details issued 27 May 2016 dated 30 November 2022; and
(b) Charge Sheet and Warrant to Arrest dated 27 May 2016.”[35]
[35]Further Affidavit of Ms Emma Roberts, dated 1 December, 2022, paragraph [5]
60Ms Roberts exhibits copies of these documents to her affidavit. She does not explain where or how these documents were located, nor why they were not exhibited previously. She does not explain the source of the “extract”.
61The extract appears as follows:
Fig 2: Extract dated 30 November 2022 concerning details of warrant issued 27 May 2016 dated 30 November 2022
62The version of the 27 May 2016 Charge-Sheet and Warrant exhibited to this affidavit has the words “Original - to be retained by Court after issue” in the top left corner. The lower portion of the first page of this version of the 26 May 2016 Charge-Sheet and Warrant appears as follows:
Fig 3: Extract from 27 May 2016 Charge-Sheet and Warrant as exhibited to affidavit of Ms Roberts sworn 1 December 2022
Third affidavit of Ms Emma Roberts sworn 27 January 2023
63On 27 January 2023, Ms Roberts swore a third affidavit. For the first time, properly certified extracts of the following 3 June 2016 orders are exhibited:
(a) order revoking bail in proceeding F11178636 on an application for an order to revoke bail;
(b) order remanding Mr Brown to Ringwood Magistrates’ Court on 20 June 2016 at 9.30 am in proceeding F11178636 on a charge of make threat to kill on 15 March 2015; and
(c) order remanding Mr Brown to Ringwood Magistrates’ Court on 20 June 2016 at 10.00am in proceeding G11505381 on a charge of intentionally damage property on 28 April 2016, with “how before Court” recorded as charge and warrant to arrest.[36]
[36]For unknown reasons, two different certified extracts of this order are exhibited.
64Ms Roberts states that she has exhibited “orders refusing bail relevant to” the 27 May 2016 Charge-Sheet and Warrant. However, she provides a certified extract for only one of the Orders said to be made in Magistrates’ Court proceeding G11505381 on 3 June 2016, whereas both DSC Lavelle and DI Cooper exhibited three orders in proceeding G11505381, one for each of the three charges in the 27 May 2016 Charge-Sheet and Warrant. Certified extracts of the 3 June 2016 orders made in proceeding G11505381 with respect to the other two charges (unlawful assault and use a carriage service to menace) are not provided as exhibits to Ms Roberts’ third affidavit and have not ever been filed in this proceeding.
Fig 4: Certified extract of Order made 3 June 2016 in proceeding G11505381 in relation to charge of intentionally damage property
Fourth affidavit of Ms Emma Roberts sworn 17 March 2023
65In Ms Roberts’ affidavit sworn 17 March 2023, she states:
“8.I am instructed by Court Services Victoria and believe that records concerning criminal matters from the Ringwood Magistrates’ Court at the relevant time were held in the following forms and systems:
(a)original, hard copy files, ordinarily stored in boxes either at the Ringwood Magistrates’ Court Registry (the Registry), at other Courts (where matters had been transferred or consolidated) or offsite at various secure storage facilities; and
(b)electronic records, recorded on a case management system known as “Courtlink”.
9.Under section 18 of the Magistrates’ Court Act 1989 (Vic) (the Act), the Court is required to keep a register of the orders of the Court and of other such matters as are directed by the Act or the Rules, to be entered into the register.
10.Under section 57(2) of the Act there is a requirement that when the Court issues a warrant, the person issuing it must record “prescribed particulars”. Regulation 78 of the Magistrates’ Court Criminal Procedure Rules 2009 (Vic) sets out the prescribed particulars.
11.I am instructed and believe that at the relevant times:
(a)the Ringwood Magistrates’ Court used Courtlink as the register for orders made by the Court;
(b)Courtlink was also used to record and store other information, for example, identifying information on a charge sheet, bail details and warrant details;
(c)notice of an order made by the Court can be generated from Courtlink at any given time;
(d)when a warrant was issued by the Ringwood Magistrates’ Court, the prescribed particulars were written by hand, usually by the Registrar who had issued the warrant, on a list maintained in a box where the original hard copy warrant was also stored; and
(e)ordinarily, electronic copies of warrants issued were not saved on Courtlink.”
66In relation to the excerpt exhibited to her second affidavit, she explains:
“22.On 30 November 2022, Court Services provided me with a copy of an electronic excerpt about a charge and warrant issued by Ringwood Magistrates’ Court on 27 May 2016, in Court 17 (page 4 of EGR-4).
23.I note that the excerpt is difficult to read, and includes a time and date stamp in the top right hand corner of the document, indicating the time and date that the document was generated.
24.The excerpt states that:
(a)the warrant was issued on 27 May 2016; and
(b)the warrant was executed on 3 June 2016.
25.The excerpt reads “User Last Changed IBLMW Date/Time 03/06/2016 10:49” which I am instructed records the date and time that the information on that screen was last modified in Courtlink.”
67In relation to the 27 May 2016 Charge-Sheet and Warrant, she explains:
“27I am instructed and believe that when a charge sheet and warrant to arrest is issued, the original document is retained by the Court. At Ringwood Magistrates’ Court, the original warrant is stored in hard copy in the box described at paragraph 11(d) above. When the warrant has been executed, and the details of the execution recorded are recorded, that document, known as the ‘execution copy’ of the warrant is ordinarily returned to the Court. The Court then creates a hard copy file for that matter, and stores the execution copy of the warrant on the Court file.
28The copy of the warrant and charge sheet dated 27 May 2016 [which is exhibited to her second affidavit] ... is a photocopy of the original warrant, stored in the box maintained at the Registry.”
68She also exhibits:
“(a)a certified extract of the warrant details entered into the register on 27 May 2016, dated 24 February 2023 (page 16 of EGR-4);
(b)a copy of the hand-written entry in the charge and warrant register; and (page 17 of EGR-4); and
(c)a further copy of the warrant and charges dated 27 May 2016 (page 5 and 6 of EGR-4).”
69This version of the 27 May 2016 Charge-Sheet and Warrant contains the words “Original – to be retained by Court after issue” in the top-left corner. It appears to be identical to the version exhibited to Mr Roberts’ affidavit sworn 1 December 2022. The lower portion of the first page of the version of the 27 May 2016 Charge-Sheet and Warrant to arrest exhibited to this affidavit appears as follows:
Fig 5: Extract from 27 May 2016 Charge-Sheet and Warrant exhibited to Ms Roberts’ 17 March 2023 affidavit
70The handwritten ledger, said to contain the prescribed particulars for a warrant under reg 78 of the Magistrates’ Court Criminal Procedure Rules 2009 (Vic) and s57(2) of the Magistrates’ Court Act, appears as follows:
Fig 6: Hand-written entries in the charge and warrant register (some names redacted)
71The operative section of the certified extract from this ledger appears as follows:
Fig 7: Certified extract of charge and warrant register
Production of Court File
72On 24 March 2023, a scanned version of the Magistrates’ Court file for proceeding G11505381 was produced to the Court as an electronic bundle of documents (“the Magistrates’ Court file”).[37] That bundle included a copy of the 27 May 2016 Charge-Sheet and Warrant. In the top-left corner of the first page, the words “Execution Copy – return to Court after execution” appear. The document (including pen markings) is entirely monochromatic, whereas other documents in the file are reproduced in colour. This suggests the version of this document on Magistrates’ Court file is a copy rather than original document. It has “3/06/2016 10:26:05 AM” in the bottom-left corner.
[37]References in these reasons to page numbers of the Magistrates’ Court file are references to the page number of the pdf document by which the file was produced.
Fig 8: Extract of 27 May 2016 Charge-Sheet and Warrant on Magistrates’ Court file
73The bottom of the second page contains a handwritten annotation recording that the warrant and continuation of charges was executed on 3 June 2016 by DS Kos:
Fig 9: Extract from page 2 of 27 May 2016 Charge-Sheet and Warrant on Magistrates’ Court file
Affidavit of Detective Leading Senior Constable Joshua Whitby sworn 30 March 2023
74DLSC Whitby swore an affidavit dated 30 March 2023. He exhibits, to his affidavit, handwritten notes dated 3 June 2016. He describes the arrest of the plaintiff “[o]n the basis of my memory, and with the assistance of my handwritten notes dated 3 June 2016”.[38] He states that he cannot recall what he was told in relation to any charges or arrest warrant issued in the name of Mr Brown at the briefing, and then goes on to describe the “usual practice” of being shown or advised of relevant charges and warrant.
[38]Affidavit of Detective Leading Senior Constable Joshua Whitby, dated 30 March 2023, paragraph [9]
75He states that he was in the presence of DS Kos when he observed:
“…
(a)D/Sgt Kos explaining to the plaintiff that there was a warrant issued for his arrest and this warrant required execution; and
(b)D/Sgt Kos verbally giving the plaintiff a caution stating his rights; and
(c)D/Sgt Kos placing the plaintiff under arrest.
9.7I observed the plaintiff acknowledge the above and I recall him saying he “comprehends” repeatedly. This is reflected in my handwritten notes dated 3 June 2016, including my note of the plaintiff saying “comprehends”. I also refer to paragraph 7 of my statement dated 30 June 2017.”
76He states that DS Kos and DSC Brown have retired from Victoria Police, but exhibits their handwritten notes. Both sets of notes include reference to a warrant. The handwritten notes of DSC Brown include the following four entries, each including express reference to the existence of a warrant:
Fig 10: Extract from handwritten notes of DSC Brown
Second affidavit of Detective Senior Constable Colin Lavelle sworn 30 March 2023
77DSC Lavelle swore a second affidavit dated 30 March 2023. He states at paragraphs 12 to 20:
“12.On 27 May 2016, I attended the Ringwood Magistrates’ Court to apply for the Charge-Sheet and Warrant to Arrest for the plaintiff to be issued. My usual practice is to attend with four copies of the Charge-Sheet and the Warrant to Arrest when making such an application. I cannot recall if I did this on 27 May 2016, but expect I would have done this based on my usual practice.
13.Over my 17 years of being employed at Victoria Police, I have applied for a Charge-Sheet and Warrant to Arrest many times. My usual practice in making such an application is to give evidence on oath regarding the basis for applying for the Warrant to Arrest. My usual practice is to either to repeat the Oath that is read to me by the registrar or read the Oath from a card that is handed to me by the registrar at the time. I cannot recall a time I have ever deviated from this process.
14.I cannot recall whether I repeated the Oath or read it from a card on 27 May 2016, however, given my usual practice, I expect that I would have given on Oath via either of these methods.
15.When giving evidence about the reason for an application for a Warrant to Arrest being made, my usual practice is to explain the nature of the relevant charges and the reason why a Warrant for Arrest was being applied for. As such, while I do not recall exactly what I said in my evidence in the Ringwood Magistrates’ Court on 27 May 2016, I expect that, in line with my usual process, I would have explained the nature of the Charges (as detailed in paragraph 11 above) and the reasons for the Warrant to Arrest being applied for (as to which, see paragraph 10 above).
16.After giving evidence on oath, if the Charge Sheet and Warrant to Arrest is to be issued, the usual process is that the Registrar, Deputy Registrar or Magistrate would sign all four copies of the Charge-Sheet and Warrant to Arrest. Once all are signed, three copies would be returned to me, being one for execution, one for the police brief and one for the accused. I understand that the fourth copy is usually retained on the Court file.
17.After receiving an issued Warrant to Arrest, my standard practice has been to place a copy of the Charge-Sheet and Warrant to Arrest in the investigation file for the accused upon returning to the police station, for it to be executed at a later date. I do not recall deviating from this process on 27 May 2016, so expect that this is what I would have done, although I cannot recall that exactly.
18.I have searched for relevant diary notes or records regarding my attendance at the Ringwood Magistrates’ Court on 27 May 2016, but have not found these. I have moved stations many times over my career and expect that these notes are now destroyed.
...
19. I refer to my statement included in the brief of evidence for the criminal matters regarding the plaintiff signed 19 June 2016. Paragraph 13 of that statement refers to the plaintiff being arrested on 3 June 2016 “in relation to the menacing phone call to the office of Matthew GUY”.
20.This paragraph was intended to refer to the factual circumstances that lead to the plaintiff being charged and arrested on the following charges:
20.1intentionally damage property (Charge 1);
20.2unlawful assault (Charge 2); and
20.3use carriage service to harass (Charge 3).”
Is Mr Brown’s contention that the 27 May 2016 Charge-Sheet and Warrant is a fraud tenable?
Submissions of the parties
78The third defendant contends that, in light of the evidence before the Court, there can be no dispute that the 27 May 2016 Charge-Sheet and Warrant was issued by the Ringwood Magistrates’ Court on 27 May 2016.
79Mr Brown contends that:
(a) the charges connected to his arrest were filed with the Magistrates’ Court for the first time on 15 June 2016; and
(b) the 27 May 2016 Charge-Sheet and Warrant was not created until sometime between 10 October 2016 (the date on which he requested the Magistrates’ Court file) and 24 October 2016 (the date on which he inspected the Magistrates’ Court file).[39]
[39] Transcript of 4 April 2023, T77, 17-22; Second affidavit of Mr Brown, paragraphs [92] and [94]
80Mr Brown relies upon:
(a) his belief that the police planned to arrest him without charge, take him to the police cells, question him and take him before a bail justice rather than the Magistrates’ Court, and that this plan was thwarted because the police cells were closed;[40]
(b) the inconsistencies in the affidavits filed on behalf of the police defendants and the Magistrates’ Court defendants, and the failure to refer to the 27 May 2016 Charge-Sheet and Warrant in the evidence filed in this proceeding until the first affidavit of DSC Lavelle sworn 28 November 2022;
(c) the inconsistency between DSC Lavelle’s evidence that he faxed the 15 June 2016 charge-sheet to Central Data Entry Bureau, which led to LEAP being updated to show the date Mr Brown was charged as 15 June 2016 without DSC Lavelle’s knowledge; and
(i)his failure to produce the fax or any evidence of its existence;
(ii)a LEAP printout of Mr Brown’s “Person History Report” on the Magistrates’ Court file, which shows DSC Lavelle as being the “reporting member” on 15 June 2016;[41]
(iii)a LEAP printout of Mr Brown’s criminal record on the Magistrates’ Court file dated 15 June 2016, which bears DSC Lavelle’s handwritten signature;[42] and
(iv)DSC Lavelle’s affidavit in opposition to bail sworn 13 September 2016, which refers to the fact that the applicant was charged on 15 June 2016;[43]
[40] Transcript of 4 April 2023, T14, 5-16
[41]Page 102 of Magistrates’ Court file. DSC Lavelle’s User ID can be seen at the top-left corner of page 80 of the Magistrates’ Court file.
[42] Page 80 of pdf of the Magistrates’ Court file
[43]Affidavit in opposition to an application for bail sworn by DSC Lavelle on 13 September 2016; second affidavit of Mr Brown, page 57 of the pdf document.
(d) the failure to serve the 27 May 2016 Charge-Sheet and Warrant upon Mr Brown;
(e) Mr Brown’s evidence that the VLA lawyer, who saw him on 3 June 2016, did not have a copy of the charge-sheet;
(f) the lack of any specific or sufficiently accurate recollection of a warrant by DSC Lavelle and DLSC Whitby in their affidavits;
(g) the lack of any reference to the 27 May 2016 Charge-Sheet and Warrant in Mr Brown’s property records;
(h) the multiple versions of the 27 May 2016 Charge-Sheet and Warrant;
(i) the admitted alteration of the LEAP records to backdate the charge-sheet of 15 June 2016 to 3 June 2016; and
(j) the twelve-day discrepancy in calculation of days in custody in the Order of Magistrate Holzer made 14 December 2017.
Consideration
81At the time Mr Hocking’s first affidavit was filed:
(a) Mr Brown’s contention that he was arrested without charge, and that charges were not filed against him until 15 June 2016, had been a persistent theme in his complaints concerning his arrest since at least August 2016;[44]
[44]See, for example, affidavit of Mr Brown affirmed 25 August 2016, exhibited to Mr Brown’s second affidavit at page 38 of the pdf document.
(b) DI Cooper had made a decision to amend the LEAP records to show the date of charge for Mr Brown as 3 June 2016 as he had “became aware due to correspondence from the plaintiff, that the LEAP records … were showing the date the plaintiff was charged on 15 June 2016”[45] and “knew this to be the incorrect date”,[46] and “formed the opinion that the LEAP records needed to be amended to rectify the mistake and show the correct date for the charge of the plaintiff”;[47]
[45]Affidavit of DI Cooper, dated 28 November 2022, paragraph [7]
[46]Affidavit of DI Cooper, dated 28 November 2022, paragraph [7]
[47]Affidavit of DI Cooper, dated 28 November 2022, paragraph [9]
(c) DI Cooper was aware that an affidavit had previously been relied upon in a Supreme Court proceeding which gave the date of 15 June 2016. This was acknowledged by DI Cooper in a letter to the plaintiff dated 9 July 2021:
“… Victoria Police has used the 15th of June 2016 in a number of subsequent documents, including the Supreme Court affidavit prepared for bail application heard on the 21st September 2016. … .”;
(d) Mr Brown’s claim was squarely raised in paragraph 24 of his Statement of Claim filed 31 May 2022:
“24.The plaintiff was falsely imprisoned on the 3rd of June 2016 for charges not filed until 12 days later. ...
25.The charges connected to this arrest were not filed until 12 days later on the 15th of June 2016.”;
(e) Mr Brown’s claim that he was not charged until 15 June 2026 on an arrest that occurred on 3 June 2016 was therefore required to be addressed in the third defendant’s summary judgment application; and
(f) VGSO’s clients were Victoria Police and a number of individual police officers who had been involved in matters concerning Mr Brown, including DSC Kos.
82It is very surprising, in this context, that an affidavit was sworn by Mr Hocking on 19 August 2022 which gave Mr Brown’s charge date as 15 June 2016 and made no reference to the 27 May 2016 Charge-Sheet and Warrant. The only explanation that has been provided to the Court for this affidavit is that Mr Hocking relied upon the documents provided to him. It is not explained how Mr Hocking came to rely upon these documents alone, rather than obtaining or receiving proper instructions from the police defendants. Nor has any explanation been provided as to why it was not realised that a charge date of 15 June 2016 on an arrest on 3 June 2016 might be problematic, particularly when this was the very claim made by Mr Brown in his statement of claim. In the circumstances, an explanation was warranted.
83It is also surprising that the method for certifying Magistrates’ Court orders does not seem to have been understood by the deponents of affidavits filed by the police defendants (despite this issue also having been raised by Mr Brown in previous correspondence).
84I am not of the view that a contention that a document was backdated by a police officer is, in and of itself, a contention that has no real prospect of success. The mere production of the 27 May 2016 Charge-Sheet and Warrant, and the affidavit evidence of DSC Lavelle that he obtained it on 27 May 2016, would not have been sufficient to justify the grant of summary judgment in the circumstances of this case. However, the third defendant now relies upon significant documentary evidence to establish the existence of the 27 May 2016 Charge-Sheet and Warrant:
(a) at least three different versions of the 27 May 2016 Charge-Sheet and Warrant,[48] including two which bear what appears to be a date of “3.06.2016 10:26:05 AM” (Fig 1, Fig 8 and Fig 9) and one which bears a handwritten annotation confirming execution on 3 June 2016 by DS Kos (Fig 9). I accept that the existence of different versions accords with Magistrates’ Court procedure, as explained by the fourth affidavit of Ms Roberts and the second affidavit of DSC Lavelle;
(b) handwritten notes of DS Kos and DSC Brown (Fig 10) which describe Mr Brown’s arrest and refer to the warrant;
(c) an electronic excerpt provided by Court Services Victoria which provides “Warrant Details”, which include that it was issued on 27 May 2016 and executed on 3 June 2016 and “User Last Changed IBLMW Date/Time 03/06/2016 10:49” (Fig 2);
(d) a certified extract of an order made on 3 June 2016, in proceeding G11505381, in relation to the charge of intentionally damage property on 28 April 2016, which records against “how before the Court”, charge and warrant to arrest (Fig 4);
(e) uncertified extracts of orders made 3 June 2016, in proceeding G11505381, in relation to the charges of unlawful assault and use a carriage service to menace, which also record against “how before the Court”, charge and warrant to arrest;
(f) LEAP records on the Magistrates’ Court file showing the warrant dated 27 May 2016, with DSC Lavelle as the reporting member;[49]
(g) the entry of the warrant into the handwritten charge and warrant register for the Ringwood Magistrates’ Court (Fig 6); and
(h) a certified extract of the warrant details entered into the register (Fig 7).
[48] A fourth was also filed with the Court attached to a submission by Mr Brown, although not formally exhibited to the affidavit.
[49]Magistrates’ Court file, page 102
85The handwritten entries in the charge-sheet and warrant ledger (Fig 6) are particularly compelling. These entries contain sequential dated and numbered entries, written in multiple different pens and handwriting, and contain numerous names of both charging officers and arrested persons. They would be exceptionally difficult to falsify.
86The question of the existence, or otherwise, of the 27 May 2016 Charge-Sheet and Warrant, is a question of fact rather than law.[50] Further, the burden of establishing that fact lies upon the third defendant. Establishing that Mr Brown has no real prospect of success on his claim for false imprisonment in this context is a high hurdle for the third defendant to overcome. However, summary judgment may still be available, even though the issues in dispute are purely factual. As explained by Daly AsJ:[51]
“… does the defendant’s account of the facts have sufficient prima facie plausibility as to merit further investigation, or is it so incredible or improbable that there is no fair or reasonable probability of the defendant setting up a defence to the plaintiff’s claim?”
[50]Compare Mutton v Baker [2014] VSCA 43 in which a claim for malicious prosecution was summarily dismissed on a question of law.
[51]Campaspe Investments Pty Ltd v PBP Accounting Solutions Pty Ltd [2015] VSC 26 at paragraph [27]-[29]; applied by Judge Woodward (as he then was) in Mayart Pty Ltd v Knight [2019] VCC 1369 at paragraph [44]
87Although Daly AsJ was, there, considering an application for summary judgment against a defendant, her question provides a useful lens for assessing the present situation. In the circumstances, Mr Brown’s contention that the 27 May 2016 Charge-Sheet and Warrant is a fraud, encompasses a submission that all versions of the 27 May 2016 Charge-Sheet and Warrant, the reference to a warrant in the handwritten notes of DS Kos and DSC Brown, the reference to a warrant in the orders of 3 June 2016, the reference to a warrant in the extract produced from the Magistrates’ Court system with a last change date of 3 June 2016, and the reference to the warrant in the handwritten entries in the charge and warrant register, are all frauds. Although the burden of proof will be on the third defendant, it is aided by s18(5) of the Magistrates’ Court Act 1989 (Vic), which provides that a document:
“…purporting to be an extract from the register and purporting to be signed by a registrar who certifies that in his or her opinion the extract is a true extract from the register is admissible in evidence in any proceedings and, in the absence of evidence to the contrary, is proof of the matters appearing in the extract.”
88I understand Mr Brown’s frustration and suspicion given the inaccuracies, inconsistencies and incompleteness of the evidence relied upon in this application and in previous proceedings. As he said in oral submissions “Why are they making up stories if there’s no problem here”.[52]
[52] Transcript (“T”) from 4 April 2023, T265, L26-31
89However, any fraud would have to be simultaneously one of extraordinary complexity, involving co-ordination between multiple police officers and Court staff, and requiring sophisticated forgeries of handwritten entries in the charge and warrant ledger, entries into different databases; and alterations to orders made; and also ineptitude (in continuing to rely upon the 15 June 2016 charge-sheet subsequently in affidavits in at least two courts). Beyond Mr Brown’s speculation as to the police motives and (at times valid) criticisms of the inaccuracies and inconsistencies in their evidence, there is simply no evidence of such a fraud before the Court.
90Having regard to the evidence now relied upon by the third defendant, Mr Brown’s contention that the 27 May 2016 Charge-Sheet and Warrant is a fraud created after October 2016, is so incredible or improbable that there is no fair or reasonable probability of it being accepted by a court. I find that Mr Brown’s contention that the 27 May 2016 Charge-Sheet and Warrant was a fraud is not tenable and has no real prospect of success.
Was the 27 May 2016 Charge-Sheet and Warrant valid?
Submissions of the parties
91Mr Brown contended that the 27 May 2016 Charge-Sheet and Warrant was not valid as:
(a) none of the check-boxes provided on the form for stating the grounds for the issue of a warrant were ticked. Further, if the reason was “other good cause”, more detail was required to be provided in the box on the right, in response to the prompt “namely”;[53]
[53] See Figs 1, 3, 4 and 8
(b) the registrar had failed to enter the “prescribed particulars” into the Register as required by s57(2) of the Magistrates’ Court Act 1989 (Vic). The prescribed particulars should be interpreted as including the matters of which a registrar was required to be satisfied under s12(5) of the Criminal Procedure Act 2009 (Vic), namely:
“(a) it is probable that the accused will not answer a summons; or
(b) the accused has absconded, is likely to abscond or is avoiding service of a summons that has been issued; or
(c) a warrant is required Or authorised by any other Act or for other good cause.”
(c) even if the “prescribed particulars” were limited to the matters in reg 78 of the Magistrates’ Court Criminal Procedure Rules 2009 (Vic) (namely the type of warrant issued and the date of issue of warrant), the prescribed particulars had not been recorded, as no type of warrant was recorded in the register;
(d) s57(1B)(b) of the Magistrates' Court Act 1989 (Vic) states that a warrant:
“must not be amended, altered or varied after its issue, unless the amendment, alteration or variation is authorised by or under this Ahct or any other Act.”
(e) the 27 May 2016 Charge-Sheet and Warrant had been amended by the addition of the execution details on the version on the Magistrates’ Court file (Fig 9).
92The third defendant contended that the 27 May 2016 Charge-Sheet and Warrant was valid because:
(a) it was supported by evidence on oath from DSC Lavelle in accordance with s61(2) of the Magistrates’ Court Act 1989 (Vic), as evidenced by the ticking of the relevant checkbox on each copy of the 27 May 2016 Charge-Sheet and Warrant, and DSC Lavelle’s second affidavit;
(b) the mere fact that no check-box providing a ground for the issue of the warrant was ticked did not render the warrant invalid. There was no requirement to provide reasons for the issue of a warrant. Section 61(6) of the Magistrates’ Court Act 1989 (Vic) expressly excludes a warrant “in the first instance” from the requirement to include a statement of reasons for issuing a warrant;[54]
(c) considering the charges detailed on the 27 May 2016 Charge-Sheet and Warrant and the evidence of DSC Lavelle, it was likely that the reason for issue of the warrant was “other good cause” within the meaning of s12(5)(c) of the Criminal Procedure Act 2009 (Vic). The term “other good cause” is not to be narrowly construed.[55] It was well within the power of the Registrar to issue a warrant for other good cause in the circumstances; and
(d) in any event, any contention that the 27 May 2016 Charge-Sheet and Warrant was not valid, was more appropriately dealt with by way of judicial review.
[54]The third defendant also relied upon Fiore v Magistrates’ Court of Victoria [2020] VSC 92 at paragraph [31] and Fiore v Magistrates’ Court of Victoria [2020] VSCA 314 at paragraphs [47]-[50]
[55]Fiore v Magistrates’ Court of Victoria [2020] VSC 92 at paragraph [76] and Fiore v Magistrates’ Court of Victoria [2020] VSCA 314 at paragraph [40]
93In the third defendant’s written submissions dated 30 March 2023, it also relied upon a previous finding by Lyon J that he:
“… proceed on the basis that I am entitled to presume that the document was regularly signed and filed. Accordingly in the first instance, I can be satisfied that the document provides the basis for a lawful arrest of Mr Brown.” [56]
[56]Further submissions of the Third Defendant, dated 30 March 2023 at paragraph [7]
94However, in oral submissions, the third defendant conceded that the decision of Lyon J did not create any form of estoppel or otherwise bind this court on the third defendant’s application for summary judgment.
Consideration
95At the relevant time, s57 of the Magistrates’ Court Act 1989 (Vic) provided that:
“(1) The following warrants may be issued—
(a) warrant to arrest;
(b) remand warrant;
(c) search warrant;
(d) warrant to seize property;
(e) warrant to imprison;
(f) warrant to detain in a youth justice centre;
(g) infringement warrant.
…
(2) The person issuing a warrant must cause the prescribed particulars of the warrant to be entered in the register.
(3) A warrant must name or otherwise describe the person or property against whom or which it is issued.
(4) All warrants, other than a search warrant, may be issued by a registrar or a magistrate.
(5) A search warrant may only be issued by a magistrate.
(6) Remand warrants may be issued by a bail justice.
(7) A judge of the Supreme Court or judge of the County Court may exercise any power conferred on a magistrate by or under this Act with respect to the issue, recall or cancellation of a warrant or duplicate copy of a warrant.
(7A) The registrar of the County Court or the prothonotary of the Supreme Court may issue a warrant to imprison in the circumstances set out in sections 263(4), 266(3A) and 267(1A) of the Criminal Procedure Act 2009.
(7B) The registrar of the County Court or the prothonotary of the Supreme Court may issue a warrant to detain in a youth justice centre or a youth residential centre in the circumstances set out in sections 430(4), 430C(5) and 430D(1A) of the Children, Youth and Families Act 2005.
(8) A warrant must be executed by the use of a copy of the warrant, known as the execution copy, or by the use of a copy of the execution copy, including a copy transmitted by facsimile machine .
(9) The execution copy of a warrant must be in writing and must be signed or otherwise authenticated by the person issuing it.
(10) An execution copy of a warrant must be returned, when executed, to the Court.”
96Section 57(1B)(b) was not inserted into the Magistrates’ Court Act 1989 (Vic) until 1 July 2016. There was no express requirement that a warrant not be amended, altered or varied in the version of s57 in force on 27 May 2016. In any event, annotating the warrant by inscribing execution details is not an amendment, alteration or variation to the substantive portions of the warrant. Even if not expressly authorised by the Act, the mere making of these annotations to the warrant, at some point after the arrest, could not render the prior arrest unlawful.
97Section 61 of the Magistrates’ Court Act 1989 (Vic) specifically concerned warrants to arrest. It provided:
“Issue of warrant to arrest
(1) A warrant to arrest in the first instance may be issued—
(c) as authorised by any other Act.
(2) An application for a warrant to arrest in the first instance must be supported by evidence on oath or by affidavit.
(3) An affidavit supporting an application for a warrant to arrest in the first instance may be a copy of an affidavit transmitted by facsimile machine.
(5) A warrant to arrest other than in the first instance may be issued—
(d) as authorised by this or any other Act.
(6)A warrant to arrest other than in the first instance must include a statement of the reason for issuing the warrant.”
98In relation to the requirement, in s57(2), that the prescribed particulars be recorded in the Register, reg 78 of the Magistrates’ Court Criminal Procedure Rules 2009 (Vic) provided that:
“For the purposes of section 57(2) of the Magistrates' Court Act 1989, the following particulars are prescribed—
(a) type of warrant issued;
(b)date of issue of warrant;
(c) in the case of a warrant to seize property or a warrant to imprison issued for non-payment of a fine—
(i) the sum in respect of which the warrant is issued; and
(ii) the person to whom the warrant is directed for execution.”
99As explained by the majority of the High Court in the seminal case of Project Blue Sky v Australian Broadcasting Authority:[57]
“An act done in breach of a condition regulating the exercise of a statutory power is not necessarily invalid and of no effect. Whether it is depends upon whether there can be discerned a legislative purpose to invalidate any act that fails to comply with the condition. The existence of the purpose is ascertained by reference to the language of the statute, its subject matter and objects, and the consequences for the parties of holding void every act done in breach of the condition. Unfortunately, a finding of purpose or no purpose in this context often reflects a contestable judgment. The cases show various factors that have proved decisive in various contexts, but they do no more than provide guidance in analogous circumstances. There is no decisive rule that can be applied; there is not even a ranking of relevant factors or categories to give guidance on the issue.
…
… A better test for determining the issue of validity is to ask whether it was a purpose of the legislation that an act done in breach of the provision should be invalid. This has been the preferred approach of courts in this country in recent years, particularly in New South Wales. In determining the question of purpose, regard must be had to ‘the language of the relevant provision and the scope and object of the whole statute’.”[58]
(Footnotes omitted.)
[57][1998] HCA 28
[58](Ibid) at paragraphs [91] and [93]
100Section 61(6) of the version of the Magistrates’ Court Act 1989 (Vic) in force at the time that the 27 May 2016 Charge-Sheet and Warrant was issued, required a statement of reasons to be included in a warrant to arrest. However, a warrant to arrest “in the first instance” was expressly excluded from this requirement. By 27 May 2016, the operative provisions authorising the issuing of a warrant to arrest had been moved to the Criminal Procedure Act 2009 (Vic), leaving s61 a mere shadow of its former self, without even so much as sequential alphabetical sub-paragraphs (see s61(1)(c) and s61(5)(d), extracted above). However, if one traces s61 back to its form prior to the commencement of the Criminal Procedure Act 2009 (Vic), it is clear that the phrase “warrant to arrest in the first instance”, is intended to describe a warrant issued in conjunction with the filing of charges, and a warrant to arrest “other than in the first instance” is intended to describe a warrant to arrest upon failure to attend in answer to a summons, witness summons, or in accordance with bail. There is nothing to suggest that Parliament intended to change the definition of these terms (which in any event accord with the ordinary meaning of those terms) by moving the operative sections concerning issuing a warrant to the Criminal Procedure Act 2009 (Vic). The 27 May 2016 Charge-Sheet and Warrant was, thus, clearly a warrant to arrest in the first instance. It was therefore excluded from the express statutory requirement to provide reasons under s61(6).
101There is also no common law requirement to state the grounds for issuing a warrant, in that warrant.[59]
[59] See Fiore v Magistrates’ Court of Victoria [2020] VSCA 314 at paragraphs [47]-[50]
102Regulation 11 of the Magistrates’ Court Criminal Procedure Rules 2009 (Vic) provides:
“11 Prescribed forms for commencing a criminal proceeding
The prescribed form for—
(a) a charge-sheet is Form 1;
(b) a continuation of charges is Form 2;
(c) a charge-sheet and summons is Form 3;
(d) a charge-sheet and summons (corporate accused) is Form 4; and
(e) a charge-sheet and warrant to arrest is Form 5.”
103Form 5 includes the following statement:
“I am satisfied by the evidence before me that a Warrant should be issued on the following grounds:
it is probable the person will not answer a summons
the person has absconded or is likely to abscond
the person is avoiding the service of a summons
the warrant is required authorised by another Act namely
other”
104I am conscious that a warrant to arrest authorises the deprivation of liberty of a person, and that any such power must be strictly and carefully construed. However, the legislative schema governing warrants to arrest comprises the Magistrates’ Court Act 1989 (Vic), the Criminal Procedure Act 2009 (Vic), the Magistrates’ Court Criminal Procedure Rules 2009 (Vic) and finally the forms prescribed under those rules. This schema creates a hierarchy of obligations, with the most significant included in either the Magistrates’ Court Act 1989 (Vic) or the Criminal Procedure Act 2009 (Vic) (or both) and the least significant, included only in the prescribed form. The requirement to provide reasons for a warrant to arrest in the first instance is expressly excluded from the operation of the s61(6) requirement to provide reasons, and is included only by implication by the inclusion of a check-box in a form prescribed under the Magistrates’ Court Criminal Procedure Rules 2009 (Vic). Having regard to "the language of the relevant provision and the scope and object of the whole [legislative schema]”,[60] it cannot have been the intention of Parliament that a failure to tick the relevant check-box in a prescribed form, and thereby provide details of the grounds, would render the warrant invalid.
[60] Project Blue Sky v Australian Broadcasting Authority at paragraphs [1998] HCA 28 [91] and [93]
105In relation to the particulars which are to be recorded in the Register, the Magistrates’ Court Act 1989 (Vic) requires the prescribed particulars to be recorded in the Register, but does not specify a time for completion. The particulars, themselves, are prescribed by the Magistrates’ Court Criminal Procedure Rules 2009 (Vic). The Magistrates’ Court is expressly empowered to dispense with any of the requirements in those rules.[61]
[61] Rule 31D
106On its face, the intention of this requirement was to encourage accurate recordkeeping as part of the practice and procedure of the Magistrates’ Court. I do not accept that Parliament intended that a failure by a Magistrates’ Court registrar to comply with the requirement to record the prescribed particulars could, after the event, invalidate an arrest made by a police officer under an otherwise valid warrant.
107Finally, any argument that the 27 May 2016 Charge-Sheet and Warrant should be set aside on standard judicial review grounds, ought to have been made by way of judicial review.
108I accept that the prescribed form for the 27 May 2016 Charge-Sheet and Warrant was not fully completed by the Registrar, as no check-box for grounds was ticked. There is also a real prospect that the prescribed particulars were not recorded in the register after the warrant was issued. The issue of a warrant to arrest authorises a police officer to deprive an accused of their liberty. It is a very serious matter. It goes without saying that all steps surrounding its issue and execution should be performed with diligence and care. The form for the issue of the 27 May 2016 Charge-Sheet and Warrant should have been completed fully by the Registrar, including by adding the date, ticking the provided check-box for grounds and (if required) providing more detail of the grounds for the warrant. However, not all failures to comply with statutory conditions render an administrative act invalid (much less a failure to comply with a prescribed form). I do not accept that Mr Brown has a real prospect of establishing that the missing details rendered the 27 May 2016 Charge-Sheet and Warrant invalid. Mr Brown’s contention that the 27 May 2016 Charge-Sheet and Warrant was invalid has no real prospects of success.
Could a failure to serve the 27 May 2016 Charge-Sheet and Warrant on Mr Brown render his arrest unlawful?
Submissions of the parties
109Mr Brown says that:
(a) he was never personally served with the 27 May 2016 Charge-Sheet and Warrant;
(b) he was not provided a copy of the charges against him until July or August 2016; and
(c) the first time he received a copy of the 27 May 2016 Charge-Sheet and Warrant was on 24 October 2016, after he obtained access to the Magistrates’ Court file in proceeding G11505381.
110Mr Brown relied principally upon s16 of the Criminal Procedure Act 2009 (Vic), which provides:
“16 Personal service of summons
Except where otherwise expressly enacted, every summons to answer to a charge must be served personally on the accused in accordance with section 391—
(a) subject to paragraph (b), at least 14 days before the return date;
(b) in the case of a charge for an indictable offence in respect of which a registrar of the Magistrates' Court has fixed a date for a filing hearing, at least 7 days before that date or any other time before that date that is prescribed by the rules of court.”
111The third defendant contended that s16 was applicable only to a summons to answer a charge and not a charge-sheet and warrant. Counsel for the third defendant then very properly drew the Court’s attention to s13 of the Criminal Procedure Act 2009 (Vic), which provided:
“13 Summons or warrant to be accompanied by charge-sheet and notice when served
A summons to answer to a charge issued under section 12 or 14 or a warrant to arrest issued under section 12, on service or execution on the accused, must be accompanied by—
(a) a copy of the charge-sheet; and
(b) a notice, in the form prescribed by the rules of court, containing—
(i) if the charge is for an indictable offence that may not be heard and determined summarily or the charge-sheet contains a request for a committal proceeding, a summary of Part 4.4; and
(ii)if the charge is for any other indictable offence or a summary offence, a summary of Division 2 of Part 3.2; and
(iii) advice that the accused should seek legal advice and that the accused has the right, if eligible, to legal aid under the Legal Aid Act 1978; and
(iv) details of how to contact Victoria Legal Aid.”
112It was accepted by the third defendant, in its submissions, that this section implied that a charge-sheet and warrant should at some point be served on an accused. However, it submitted that no time was provided when the warrant must be served, nor was any mode of service prescribed. Accordingly, it said that ordinary service sufficed.
113Further, the third defendant contended that the Court ought keep in mind the purpose of s13, which it said was to accord procedural fairness to the accused. The third defendant contended that any failure to comply with the requirement ought to have been dealt with in proceeding G11505381 by means of an adjournment.[62]
[62] See Guss v Commissioner of Taxation [2015] VSC 259
Consideration
114On the evidence relied upon in this application, it appears likely that Mr Brown was not served or otherwise provided a copy of the 27 May 2016 Charge-Sheet and Warrant at the time of his arrest, or within a reasonable time after his arrest. Mr Brown gave evidence that he did not receive a copy of the 27 May 2016 Charge-Sheet and Warrant until he obtained a copy of the Magistrates’ Court file in October 2016. His evidence is supported by the property records of his imprisonment. His evidence is also supported by the copy of the 27 May 2016 Charge-Sheet and Warrant which was exhibited to DSC Lavelle’s first affidavit (Fig 1), which contains the words “Accused Copy” in the top left corner. If DSC Lavelle was able to exhibit the “Accused Copy” to his affidavit, it is unlikely that the “Accused Copy” was, in fact, given to the accused, Mr Brown.
115For the purposes of this summary judgment application, I have therefore assumed that the 27 May 2016 Charge-Sheet and Warrant was not served on Mr Brown at the time of his arrest, or within a reasonable time after his arrest.
116At common law, a warrant may be executed by reading the warrant to the accused, without physically providing them a copy.[63]
[63] Tipping v R [2023] 27 SASCA 8
117The requirement in s16 of the Criminal Procedure Act 2009 (Vic) to personally serve a summons does not apply to a charge-sheet and warrant. A warrant to arrest is quite a different document to a summons and the terms are used to refer to different documents in the Criminal Procedure Act 2009 (Vic) and other relevant legislation. A summons is addressed to the accused and requires them to attend Court on a particular date. A warrant to arrest, on the other hand, is directed to a police officer and authorises them to arrest an accused. Section 12 of the Criminal Procedure Act 2009 (Vic) draws a clear distinction between a summons, on the one hand, and a warrant on the other. There is nothing to indicate that Parliament intended the word “summons” to include “warrant” in s16. Although the 27 May 2016 Charge-Sheet and Warrant included words requiring Mr Brown to attend Court, this did not make the document a summons. No argument is made in this proceeding that Mr Brown was required to bring himself to Court by reason of the 27 May 2016 Charge-Sheet and Warrant. To the contrary, it is the contention of all parties that he was arrested and conveyed there against his will.
118Section 65(2) of the Magistrates’ Court Act 1989 (Vic) deals with the situation where a person has been arrested by a police officer who does not have the execution copy of a warrant in their possession. It provides:
“(2) On the arrest of a person under subsection (1) by a police officer … the police officer must bring the person arrested before a bail justice or the Court within a reasonable time of being arrested … and the bail justice or the Court may—
(a) if a fresh charge-sheet is filed to the effect of the offence or matter alleged in the warrant—
(i) permit the person to go at large; or
(ii) admit the person to bail; or
(iii) in the case of the Court, hear and determine the proceeding for the offence; or
(b) if a fresh charge-sheet is not filed to the effect of the offence or matter alleged in the warrant—
(i) permit the person to go at large; or
(ii) admit the person to bail; or
(iii) remand the person in custody for a reasonable time pending execution of the warrant.
(3) If a person has been arrested under subsection (1) and has been remanded in custody pending execution of the warrant and the warrant is not executed within a reasonable time, the Court must discharge the person from custody.”
119Under s65 of the Magistrates’ Court Act 1989 (Vic), a police officer can thus arrest an accused pursuant to a warrant without having a copy of the charge-sheet and warrant actually in their possession.[64] It follows from this that it must be possible to validly arrest an accused pursuant to a warrant, without immediately serving the warrant on the accused. Although the warrant must subsequently be “executed” within a reasonable time, it is apparent from the structure of s65, and particularly sub-s65(2) and (3) that a failure to do so does not retrospectively invalidate the arrest, but rather creates an obligation to release the accused within a reasonable time.[65]
[64] Magistrates’ Court Act, s65
[65] Magistrates’ Court Act, s65(2)(b), s65(3)
120Having said that, there seems little point in including the notice required by s13 as an attachment to a charge-sheet and warrant, unless the accused were intended to be provided with a copy to keep and consider.
121In my view, good procedure would clearly dictate the accused being provided with a copy of the charge-sheet and warrant and required attachments, at the time of their arrest, if possible. This is reflected in the usual practice of creating a “Accused Copy” when a charge-sheet and warrant is issued.[66] A failure to do so at the time of arrest, or within a reasonable time after arrest, may justify an adjournment of the proceeding or other steps to ensure a fair hearing in a criminal proceeding.[67] It also creates a risk that the arresting police officers will be faced with a claim of exactly the sort made in this proceeding.
[66] See Fig 1 and second affidavit of DSC Lavelle sworn 30 March 2023, para 12
[67] Guss v Commissioner of Taxation & Anor [2015] VSC 259
122However, the issue in this proceeding is not whether good procedure was followed, but whether Mr Brown’s arrest was rendered unlawful by reason of the failure to physically provide Mr Brown with a copy of the 27 May 2016 Charge-Sheet and Warrant. I have not been taken to any express legal requirement to do so, beyond the usual obligation to provide an accused with a copy of a charge-sheet filed in the proceeding. Section 57(8) of the Magistrates’ Court Act 1989 (Vic) requires a warrant to be executed with an “execution copy”, which is then required to be returned to the Court. Clearly, the “execution copy” could not be served on the accused in these circumstances. Section 57 does not refer to any other copies of the warrant being required to be present at the time of arrest. Further, a requirement to do so at the time of arrest would conflict with s65 of the Magistrates’ Court Act 1989 (Vic), which permits a person to be arrested under a warrant by a police officer, even though the police officer does not have the execution copy of the warrant in their possession.
123Arrests under warrant may occur in many different circumstances, including those presenting a significant risk to the safety of arresting police officers and members of the public and occurring in circumstances of extreme urgency. If Parliament had intended that a failure to physically provide a warrant to an accused at the time of arrest would render an arrest unlawful, regardless of the circumstances, it would have said so expressly.
124In Guss v Commissioner of Taxation,[68] Cavanough J considered the question of whether non-compliance with s13 of the Criminal Procedure Act 2009 (Vic) must lead to the dismissal of a charge. The plaintiff contended that s13 required that he be served with a complete copy of the charge-sheet and warrant at the time of his arrest, including the relevant s13 notice. Cavanough J assumed (without deciding) that s13 created a requirement to serve the charge-sheet and warrant at the time of execution of the warrant. He held that the underlying purpose of s13 was to ensure procedural fairness. Where there had been non-compliance, a fair hearing might require adjournment or exclusion of evidence. However, he found that there was no legislative intention that a failure to comply with this requirement would invalidate the charge sheet: [69]
The consequences of accepting the plaintiff’s argument would … mean that any nontrivial slip on the part of the authorities at the time of service of a summons or execution of a first instance warrant to arrest would deprive the State of the capacity to prosecute the accused, regardless of the seriousness of the offence. For example, that would be the situation with respect to a murder charge or a very serious drug trafficking charge…in every case it will be too late to cure any non-trivial breach of s 13. The argument is completely unacceptable.
[68][2015] VSC 259
[69] Guss v Commissioner of Taxation [2015] VSC 259 at paragraph [40]-[42]
125Although Guss concerned the question of whether the charges in a charge-sheet and warrant could be pursued after a breach of s13, rather than whether an arrest was unlawful, in my view the reasoning of Cavanough J in relation to the parliamentary intention is also apposite to the lawfulness of an arrest. It cannot have been the intention of parliament that any breach of s13, even if trivial, would render an arrest pursuant to an otherwise valid warrant unlawful.
126It was also accepted by Counsel for the third defendant that there was no positive evidence that the 27 May 2016 Charge-Sheet and Warrant was in the possession of the arresting police officers at the time of Mr Brown’s arrest.[70] This might be said to found an argument that the arrest was made under s65 of the Magistrates’ Court Act 1989 (Vic). Where an arrest is made under s65 by an arresting officer who does not have possession of the execution copy of the warrant, ss65(2) and (3) effectively require that, either:
(a) a fresh charge-sheet be filed when the accused is brought a bail justice or the Court; or
(b) the warrant be executed within a reasonable time.
[70] Transcript 4 April 2023, T58, L6-27
127Without more, this might have given rise to an argument that s65(3) required Mr Brown to be released from custody within a reasonable time.[71] However, at the hearing on 3 June 2016, at which Mr Brown was remanded in custody in proceeding G11505381, a magistrate also revoked Mr Brown’s bail and remanded him in custody in proceeding F11178636. From 3 June 2016, this provided an additional and separate reason for Mr Brown to be remanded in custody on and from 3 June 2016, which would survive even if the orders made in G11505381 did not comply with the requirements of s65 of the Magistrates’ Court Act 1989 (Vic). Accordingly, even if it could be established that:
(a) the 27 May 2016 Charge-Sheet and Warrant was not in the possession of the arresting officers at the time of Mr Brown’s arrest;
(b) the 27 May 2016 Charge-Sheet and Warrant was not validly executed or served on Mr Brown within a reasonable time after his arrest; and
(c) it was appropriate to make a claim for the tort of false imprisonment for Mr Brown’s imprisonment after 3 June 2016, rather than appealing or seeking judicial review of the orders of the magistrate made 3 June 2016 in G11505381,[72]
there would nevertheless be an additional and separate reason which rendered Mr Brown’s imprisonment lawful on and from 3 June 2016, being the revocation of his bail in proceeding F11178636.
[71] Magistrates’ Court Act s65(3).
[72] As to which, see below under “Does liability for any unlawful arrest continue after Mr Brown is remanded in custody by a Magistrate”.
128I accept that there is no reasonable prospects of establishing that any of the police defendants falsely imprisoned Mr Brown by reason of a failure to serve the 27 May 2016 Charge-Sheet and Warrant upon him at the time of his arrest, or within a reasonable time after his arrest.
129It would have been preferable if Mr Brown were provided with the “Accused Copy” of the 27 May 2016 Charge-Sheet and Warrant at or shortly after his arrest. This is plainly what was intended by the creation of the usual procedure of obtaining four copies of the warrant, one of which being marked “Accused Copy”. It best gives effect to the notice required under s13 of the Criminal Procedure Act 2009 (Vic). It also avoids this very sort of claim being made in subsequent proceedings. However, there is a distinction between what is preferable or good procedure, or even a statutory requirement; and what would suffice to render an arrest on a valid warrant unlawful and provide a foundation for a collateral proceeding for false imprisonment.
130I am satisfied that Mr Brown’s claim that the failure to serve the 27 May 2016 Charge-Sheet and Warrant would render his arrest unlawful has no real prospects of success.
Was there an unreasonable delay between the time Mr Brown was arrested and the time he was brought before a Magistrate?
Submissions of the parties
131In its further submissions dated 30 March 2023, the State of Victoria stated that Mr Brown was “brought before the Ringwood Magistrates’ Court at approximately 10am”.[73] Mr Brown, on the other hand, contended that he was not brought before a Magistrate until after 3.00pm that day.
[73]Paragraph [22], Third Defendant’s Further Submissions dated 30 March 2023, although in oral submissions it was clarified that what was intended to be conveyed was that Mr Brown was brought to the Ringwood Magistrates’ Court building at approximately 10.00am.
132The difference between the parties as to when Mr Brown was brought before the court arose from the application of a different definition of “brought before the Court”. The third defendant contended that Mr Brown was “brought before the Court” when he arrived at the Ringwood Magistrates’ Court cells (which appears to be approximately 10.49am, not 10am). Mr Brown contended that he was not brought before the court until he actually appeared before a Magistrate.
133Somewhat ironically, the reliance by the third defendant on a time of 10.00am as the time Mr Brown was brought before the court appeared to be what triggered Mr Brown to make the submission that he had not been brought before the court within a reasonable time. He explained:
“…if it wasn’t a problem that I had been actually not brought before the magistrate until after I’d been strip searched, processed and held in the – Ringwood Court cells for five hours, if that wasn’t a problem, why didn’t the State present that?
Why did they instead try to present that I was straight, brought straight before the magistrate at 10 am, which was a time where I was still in a car being transported and the evidence shows that. … .”[74]
[74] Transcript 4 April 2023, T9, L3-11
134Accordingly, Mr Brown submitted that his being brought before the Magistrates’ Court after 3.00pm on 3 June 2016 was not within a reasonable time, as required by s64(2) of the Magistrates’ Court Act 1989 (Vic) and s464A of the Crimes Act 2009 (Vic). The third defendant, on the other hand, submitted that Mr Brown had been brought before the court by 10.49am, but if it was wrong about that, and Mr Brown was not brought before the court until after 3.00pm, that this was, in any event, plainly within a reasonable time.
Consideration
135Section 64(2) of the Magistrates’ Court Act 1989 (Vic) provides:
“(2)The person to whom a warrant to arrest is directed must cause the person named or described in the warrant when arrested—
(a) to be brought before a bail justice or the Court within a reasonable time of being arrested to be dealt with according to law; or
(b) to be released on bail in accordance with the endorsement on the warrant.”
136Further, s464A of the Crimes Act 1958 (Vic) provides:
“Every person taken into custody for an offence (whether committed in Victoria or elsewhere) must be—
(a) released unconditionally; or
(b) released on bail; or
(c) brought before a bail justice or the Magistrates’ Court—
within a reasonable time of being taken into custody.”
137Section 4(2) of the Magistrates’ Court Act 1989 (Vic) provides that:
“The Court shall consist of the magistrates, the judicial registrars of the court and the registrars of the Court”.
138Thus, “the Court” is not the physical building in which the operations of the court are conducted, but the magistrates, judicial registrars and registrars who are appointed under the Magistrates’ Court Act 1989 (Vic) to perform the powers and duties of the court. The requirements of s64(2) cannot be satisfied merely by bringing an arrested person to a building. If that were the case, a person could languish in the cells for days on an arrest warrant without their arrest being reviewed by a magistrate or bail justice, so long as those cells formed part of a court building. This is plainly not the intention of s64(2) of the Magistrates’ Court Act 1989 (Vic) or s464A of the Crimes Act 2009 (Vic). On this issue, I accept the submissions of Mr Brown that he was not brought before the court until he was brought before a magistrate, which, on the evidence, occurred late on the afternoon of 3 June 2016.
139In determining what is “reasonable” for the purposes of s64(2) of the Magistrates’ Court Act 1989 (Vic) and 464A of the Criminal Procedure Act 2009 (Vic), the Court account may take into account:[75]
[75] Section 464A(4) of the Crimes Act 1958 (Vic); see also s64(4) of the Magistrates’ Court Act 1989 (Vic).
(a) the period of time reasonably required to bring the person before a bail justice or the Magistrates’ Court;
(b) the number and complexity of offences to be investigated;
(c) any need of the investigating official to read and collate relevant material, or to take any other steps that are reasonably necessary by way of preparation for the questioning or investigation;
(d) any need to transport the person from the place of apprehension to a place where facilities are available to conduct an interview or investigation;
(e) the number of other people who need to be questioned during the period of custody in respect of the offence for which the person is in custody;
(f) any need to visit the place where the offence is believed to have been committed, or any other place reasonably connected with the investigation of the offence;
(g) any time taken to communicate with a legal practitioner, friend, relative, parent, guardian or independent person;
(h) any time taken by a legal practitioner, interpreter, parent, guardian or independent person, to arrive at the place where questioning or investigation is to take place;
(i) any time during which the questioning or investigation of the person is suspended or delayed to allow the person to receive medical attention;
(j) any time during which the questioning or investigation of the person is suspended or delayed to allow the person to rest;
(k) the total period of time during which the person has been in the company of an investigating official before and after the commencement of custody; and
(l) any other matters reasonably connected with the investigation of the offence.
140Relevant factors in the present case include the time taken to transport Mr Brown to the Ringwood Magistrates’ Court and to and from the cells; the likely demands on the resources of a busy suburban Magistrates’ Court; the decision to conduct a strip search (which I accept was reasonable before Mr Brown was brought before a magistrate); and the time allowed for Mr Brown to speak to a Victoria Legal Aid solicitor. In light of all these factors, the contention that a period of some six hours was not a reasonable time, has no real prospects of success.
Does liability for any unlawful arrest continue after Mr Brown is remanded in custody by a magistrate?
Submissions of the parties
141Mr Brown contended that his false imprisonment continued after 3 June 2016 and, indeed, continued to this day, even though he had since been released. He relied both upon what he contended was his initial unlawful arrest; and also his criticisms about the conduct of police officers at the hearing at the Magistrates’ Court on 3 June 2016.
142The third defendant contended that any false imprisonment by the police defendants ceased once the third defendant was remanded in custody by an order of the Magistrates’ Court.
Consideration
143In Trotter v the State of South Australia & Anor,[76] the Full Court of the South Australian Supreme Court upheld a decision of a trial judge dismissing a claim for damages for false imprisonment, noting:
“As the trial judge said, it is well settled that once further imprisonment is caused by the interposition of an act of the Court, there is thereafter no false imprisonment”.[77]
[76] (Unreported, SCSAFC, 28 July 1994, Mohr, Debelle and Nyland JJ)
[77](Ibid) at [3]
144The decision was subsequently applied by the Full Court of the South Australian Supreme Court in Groom:[78]
“… That lawful authority is not to be diminished or removed by a later determination that no underlying offence had been committed. In this case the appellant’s incarceration resulted from a court order and no action for false imprisonment will lie.”
[78] Groom v State of SA [2017] SASFC 35 at paragraph [44]
145If Mr Brown was of the view that there was an error in the Magistrates’ Order or it was based on incorrect information provided by the prosecution, the only appropriate recourse was to appeal or seek judicial review of that order. There could be no action for false imprisonment by the police defendants after Mr Brown was remanded in custody by an Order of the Magistrates’ Court in proceedings F11178636 and G11505381.
146I accept the submission of the third defendant that any false imprisonment by the police defendants ceased once Mr Brown was remanded in custody by an order of the Magistrates’ Court.
Conclusion
147A detailed review has now been conducted of the documents associated with the arrest of Mr Brown on 3 June 2016; and relied upon in this proceeding by the parties. As a result of that review, a number of matters have been identified where it appears that there has been a falling short of best practice in relation to the issue of the 27 May 2016 Charge-Sheet and Warrant and its execution. I have also highlighted concerns in relation to incorrect affidavits that have been filed in this proceeding. Mistakes have clearly been made. However, the issue in this case is not whether there have been technical defects or failures to follow best procedure. The issue is whether or not Mr Brown’s claim to have been falsely imprisoned has any real prospect of success. I have found that it does not.
148While I acknowledge Mr Brown’s frustration with the matters canvassed in these reasons, it is not in Mr Brown’s interest that this proceeding be prolonged if it has no real prospects of success, much less in the interests of the police defendants or, indeed, in the interests of justice. Accordingly, the proceeding is dismissed.
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