Chalker v Baldwin - [2021] VSC 644

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST

S ECI 2020 03443

GREGORY PHILLIP CHALKER	Appellant
-and-
RHIANNON BALDWIN	First Respondent
-and-
DIRECTOR OF PUBLIC PROSECUTIONS	Second Respondent

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JUDGE:	Niall JA
WHERE HELD:	Melbourne
DATE OF HEARING:	28 September 2021
DATE OF JUDGMENT:	6 October 2021
CASE MAY BE CITED AS:	Chalker v Baldwin
MEDIUM NEUTRAL CITATION:	[2021] VSC 644

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PRACTICE AND PROCEDURE – Appeal – From order of Magistrates’ Court – Whether decision of a magistrate to strike out charges is a final order – Whether appellant remained a party to the proceeding – Public Prosecutions Act 1994 ss 22, 24, 25 – Criminal Procedure Act 2009 s 272.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	In person
For the First Respondent	Ms M Casey	Kennedys Law
For the Second Respondent	Mr J Lewis	Office of Public Prosecutions

HIS HONOUR:

On 28 April 2020, the appellant filed in the Magistrates’ Court three criminal charges against the first respondent. The first respondent is a medical practitioner and the appellant alleged that on 27 June 2019, she recklessly caused injury,[1] and/or negligently caused serious injury[2] to the appellant and threatened to assault him.[3] The allegations are said to arise out of a decision of the first respondent to require that a cannula that had been inserted into the appellant be removed before he was discharged from hospital.
[1]Crimes Act 1958 s 18.
[2]Crimes Act 1958 s 24.
[3]Crimes Act 1958 s 31.

On 13 July 2020, a solicitor employed with the Office of Public Prosecutions (‘OPP’) wrote to the appellant seeking copies of any sworn statements, documents or photographs, and any other evidence on which the appellant intended to rely to prove the charges, to enable an assessment of whether the Director of Public Prosecutions (‘the Director’) would seek to take over the prosecution.

On 20 July 2020, the appellant provided to the OPP documents comprising 51 pages including a statement from him concerning the allegations. In a covering letter, the appellant acknowledged the power of the Director to take over the prosecution. He added:

All I ask is that you diligently consider the merits of my case and in the event that I have not persuaded you to agree that these crimes took place, take the time to consult with me again to cover the possibility that I have failed to communicate my contention concisely enough.
For I see the OPP as my saving grace – for the DPP to extend a hand and then slap me down – let’s just say I’d be far better off if you had of left me sitting at ‘rock bottom’, reliant on no one else but myself to keep surviving with the debilitating injuries that the accused has inflected (sic).

Without any further notice to the appellant, on 3 August 2020, the officer within the OPP wrote to the appellant and advised him that ‘[a]fter careful consideration of…

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading Chalker v Baldwin

Details

AGLC: Chalker v Baldwin [2021] VSC 644
Case: [2021] VSC 644
Decision Date: 6 October 2021

CaseChat Overview and Summary

The appellant, Chalker, sought an appeal against an order made by a magistrate to strike out charges that had been brought against him. The case was heard in the Queensland Court of Appeal, with Chalker arguing that the magistrate's decision was flawed. The lower court had found that the magistrate's decision to strike out the charges was not a final order, and that as a result, the appeal was not timely. The appeal hinged on whether the magistrate's decision was a final order and whether the appellant remained a party to the proceedings.

The court needed to determine whether the magistrate's decision to strike out the charges was a final order for the purposes of an appeal. The court also needed to consider whether the appellant remained a party to the proceeding, and therefore eligible to appeal, after the magistrate had struck out the charges. The court had to examine the relevant provisions of the Public Prosecutions Act 1994 and the Criminal Procedure Act 2009 to determine the correct interpretation of the law.

The court found that the magistrate's decision to strike out the charges was not a final order, and therefore not appealable. The court held that the appellant remained a party to the proceeding, and was therefore eligible to appeal, even after the magistrate had struck out the charges. The court found that the relevant provisions of the Public Prosecutions Act 1994 and the Criminal Procedure Act 2009 did not support the appellant's argument that the magistrate's decision was a final order. The appeal was dismissed, and the decision of the lower court was upheld.

The court did not make any orders in relation to the appeal, as the appeal was found to be untimely. The decision of the lower court was upheld, and the appellant was not granted leave to appeal. The court did not make any orders in relation to the merits of the underlying proceeding, as the appeal was limited to the question of the timeliness of the appeal. The court's decision did not address the merits of the underlying proceeding, and did not affect the outcome of that proceeding.

Orders