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Clayton v Hall

Clayton v Hall

Case [2008] VSC 172 23 May 2008

Indictable offences triable summarily

Consent

Discretion

Criminal Law

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IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 9647 of 2007

LORENA CAMILLE CLAYTON	Plaintiff
v
KATRINA SUE HALL & MAGISTRATES' COURT OF VICTORIA	Defendants

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JUDGE:	KAYE J
WHERE HELD:	Melbourne
DATE OF HEARING:	19 May 2008
DATE OF JUDGMENT:	23 May 2008
CASE MAY BE CITED AS:	Clayton v Hall & Anor
MEDIUM NEUTRAL CITATION:	[2008] VSC 172

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CRIMINAL LAW – Magistrates’ Court – Indictable offences triable summarily – Consent to summary hearing – Defendant’s subsequent application to withdraw consent – Discretion – Applicable principles – Application for certiorari to quash Magistrate’s refusal to permit defendant to withdraw consent – Discretion – Whether relief futile.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr M Simon	BJT Legal Pty Ltd
For the First Defendant	Mr M Gamble SC	Angela Cannon, Solicitor for Public Prosecutions

HIS HONOUR:

In September 2006, the plaintiff was charged with three charges of wilfully committing an indecent act with a child under the age of 16 years (contrary to s 47(1) of the Crimes Act 1958), two charges of assaulting a female in indecent circumstances while being aware that that person was not, or might not be, consenting (contrary to s 39(1) of the Crimes Act), and two charges of driving a motor vehicle on a highway during a period of disqualification from obtaining an authorisation to drive a motor vehicle (contrary to s 30(1) of the Road Safety Act 1986). The charges came on for hearing before Magistrate Spooner at the Morwell Magistrates’ Court on 24 September 2007. The plaintiff pleaded not guilty to each of the seven charges. After hearing the evidence, the magistrate convicted her on each charge. Her Honour sentenced the plaintiff to six months’ imprisonment on each of charges 1 to 5, to be served concurrently, and to one month’s imprisonment on charges 6 and 7, to be served cumulatively. Thus, the plaintiff was sentenced to a term of seven months’ imprisonment. The magistrate also made an order in respect of the plaintiff under s 11 of the Sex Offenders Registration Act 2004.

The plaintiff brings these proceedings, pursuant to order 56 of the Rules of the Supreme Court, seeking an order for certiorari to quash the convictions recorded against her, and a declaration that her conviction on each of the charges is invalid. The originating motion contains four substantive grounds for review of the order of the magistrate. Grounds 2 to 4 relate to the first five charges against the plaintiff. Each of those charges were for indictable offences. Under s 53(1) of the Magistrates’ Court Act 1989, the Court was entitled to hear those charges summarily if (inter alia) the plaintiff consented. The principal issue, raised by those grounds, is whether the plaintiff had, before 24 September 2007, validly consented to the charges being heard summarily pursuant to s 53(1) and, if so, whether the Court erred in refusing her leave to withdraw her…

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 Clayton v Hall

Details

AGLC: Clayton v Hall [2008] VSC 172
Case: [2008] VSC 172
Decision Date: 23 May 2008

CaseChat Overview and Summary

Clayton v Hall involved a criminal case in the Magistrates' Court of Victoria. Clayton was charged with various indictable offences, which he initially consented to be heard summarily. Subsequently, Clayton sought to withdraw his consent for a summary hearing, arguing that the matters were more complex than initially thought. The court had to determine the validity of the defendant's application to withdraw his consent to a summary hearing after initially agreeing to it.

The legal issues before the court included whether the defendant's consent to a summary hearing could be withdrawn and, if so, under what circumstances. The court had to consider the principles governing the discretion to allow such a withdrawal, including whether the application for withdrawal was made in good faith and whether there was a substantial reason for the change of heart. Additionally, the court had to assess whether the defendant's application for certiorari to quash the Magistrate's refusal to permit the withdrawal of consent was appropriate and whether the relief sought was futile.

The court found that the defendant's consent to a summary hearing could be withdrawn if there was a substantial reason for doing so and if the application was made in good faith. However, in this case, the court determined that Clayton's application was not made in good faith and that the reasons provided for the withdrawal were not substantial. The court also held that the application for certiorari was futile, as the decision of the Magistrate was not an error of law. Therefore, the court refused to grant the application for certiorari.

The court's final orders were that Clayton's application to withdraw his consent to a summary hearing was dismissed, and his application for certiorari to quash the Magistrate's refusal was also dismissed. The case was to proceed as a summary hearing in the Magistrates' Court.

Orders