Colleen Treloar v David Leigh Richardson
[2020] VSCA 216
•28 August 2020
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S EAPCI 2020 0079
| COLLEEN TRELOAR | Applicant |
| v | |
| DAVID LEIGH RICHARDSON | Respondent |
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| JUDGES: | BEACH, KAYE and T FORREST JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 28 August 2020 |
| DATE OF JUDGMENT: | 28 August 2020 |
| MEDIUM NEUTRAL CITATION: | [2020] VSCA 216 |
| JUDGMENT APPEALED FROM: | [2020] VSC 479 (Niall JA) |
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CRIMINAL LAW – Criminal procedure – Jurisdiction of Magistrates’ Court to hear and determine summarily charges for indictable offences – Whether magistrate erred in conducting summary hearing of indictable charges – Whether applicant consented to summary jurisdiction – Whether accused must be present when consent to summary jurisdiction is given – Whether a formal order is required – Whether magistrate erred in refusing leave to withdraw consent to summary jurisdiction – Application for leave to appeal refused – Criminal Procedure Act 2009, s 29.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr N Papas QC with Mr J Lavery | Access Law |
| For the Respondent | Mr B Sonnett | Ms A Hogan, Solicitor for Public Prosecutions |
BEACH JA
KAYE JA
T FORREST JA:
Section 29 of the Criminal Procedure Act 2009 (‘the Act’) permits a Magistrates’ Court to hear and determine summarily charges for certain indictable offences,[1] if the Court considers that the charge ‘is appropriate to be determined summarily’[2] and ‘the accused consents to a summary hearing’.
[1]As to which, see s 28 of the Act.
[2]Having regard to matters specified in s 29(2) of the Act.
On 19 December 2017, the applicant was charged with four charges of theft from her employer and four alternative charges of obtaining property by deception. The amounts involved were alleged to be $794, $2,340, $440 and $548.
On 14 May 2019, following a contested summary hearing, the applicant was convicted of three of the charges of theft and sentenced to an aggregate term of imprisonment of four months. The amount in respect of those charges totalled $3,328. The alternative charges of obtaining property by deception were struck out, and the applicant was acquitted of the remaining charge of theft and its alternative charge.
On 7 June 2019, the applicant filed a notice of appeal to the Supreme Court on a question of law pursuant to s 272 of the Act. In her notice of appeal, the applicant contended that the magistrate erred in law in conducting a summary hearing of the indictable charges against her. Specifically, the applicant put in issue whether the requirements of s 29 of the Act had been met so as to lawfully permit a summary hearing; and, if they had, whether the magistrate erred in law in refusing the applicant leave to withdraw her consent, given at an earlier hearing, to summary jurisdiction.
On 16 July 2020, the applicant’s appeal came on for hearing before Niall JA, sitting in the Trial Division. On 19 August 2020, his Honour dismissed the appeal.[3]
[3]Treloar v Richardson [2020] VSC 479 (‘Reasons’).
The applicant now seeks leave to appeal to this Court against Niall JA’s order dismissing her appeal from the Magistrates’ Court. Her proposed grounds of appeal are as follows:
1.The judge erred in failing to hold that a valid consent to summary jurisdiction pursuant to s 29(1)(b) is consent that is given in the physical presence of the appellant. (See [50], [51], [53] to [62] and [73].)
2.The judge erred in failing to hold that the Magistrates’ Court had no jurisdiction to embark upon the summary jurisdiction when the record of the Court do not reveal a decision or Order to grant summary hearing had been made. (See [67] and [70].)
3.The judge erred in concluding that the magistrate had determined that it was appropriate for the charges to be heard summarily. In particular:
(a)the judge’s view that the charges were patently suitable for summary disposition was irrelevant to the question whether the jurisdictional facts in of s 29(1)(a) were met, (see [73]); and
(b)the judge should have held that the Court record did not support the conclusion that the learned magistrate had given proper consideration to the matters contained in s 29(2) of the Criminal Procedure Act 2009 (Vic). (See [74].)
4.The judge should have decided the learned magistrate might have exercised his discretion differently had he realized he had ‘assumed wrongly that the appellant was present at the time consent was given and summary jurisdiction entered and that he had adopted his usual practice of explaining the rights to proceed to trial by jury’. (See [78].)
5.The judge erred in holding that the learned magistrate’s erroneous recollection did not infect the decision to refuse leave and whether the appellant was present at the hearing on 26 March 2018 was irrelevant to her submission that leave should be given. (See [82].)
The Magistrates’ Court proceeding
On 26 March 2018, the charges were listed for a summary case conference in the Magistrates’ Court at Horsham. The applicant was represented by her solicitor, Mr Moore. The matter was not reached until after lunch. The transcript discloses that, over the lunch break, the magistrate (Magistrate Saines) excused the applicant from further attendance so that the applicant could accompany her daughter and a recently born grandchild to Ballarat Hospital. Upon the matter being called, Mr Moore announced his appearance for the applicant and then said:
… there are indictable offences and we consent to the jurisdiction of this honourable court.
After thanking the magistrate for excusing his client over the lunch break, Mr Moore said:
Your Honour, there has been some case conferencing in this matter and I respectfully submit that this requires further case conferencing. It’s contested at this stage.
The magistrate then asked the prosecutor for his view as to whether there should be a further summary case conference or a contest mentioned. The prosecutor said there may be a further witness, and that on the next occasion the parties would be in a position to indicate whether there would be a contest or a plea of guilty. The prosecutor submitted that a short adjournment would be productive. The matter was listed for a further mention on 27 April 2018, and the magistrate extended the applicant’s bail in her absence.
The next relevant date is 4 July 2018. On that date, the applicant attended before Magistrate Clifford for a contest mention hearing in accordance with s 55 of the Act. Mr Moore again appeared for the applicant. Prior to the case being called, he spoke with the prosecutor — but the parties were unable to reach a resolution. Accordingly, the prosecutor completed a form headed ‘Request for Contested Summary Hearing’, which was then signed by the prosecutor and Mr Moore.[4] In the section of the form headed ‘Issues in Dispute’, the box next to ‘Factual Arguments’ was ticked ‘no’, but ‘Question of Law’ was ticked ‘yes’. An estimated hearing time of 1.5 days was recorded. Importantly, the box next to the question, ‘Does the accused consent to summary jurisdiction?’, was ticked ‘yes’.
[4]See r 22 of the Magistrates’ Court Criminal Procedure Rules 2009.
Subsequently, the matter was adjourned on several further occasions by reason of the applicant’s ill health. Ultimately, it was booked in for a contested hearing on 19 and 20 March 2019.
On 19 March 2019, the matter came on for hearing before Magistrate Saines. The judge described the relevant aspects of the hearing on 19 March 2019 in the following terms:
At the outset of the hearing, counsel informed the magistrate that: ‘[the appellant] does not consent to summary jurisdiction in respect of the matters.’ Counsel said that he had told the Court Registry and been informed that there was a notation on the brief of consent to ‘SJ’, which he took to be a reference to consent to summary jurisdiction. Counsel said that he had then made enquiries and been informed that there were no registered orders in respect of the matter on the Court system. Counsel submitted that the matter could not proceed summarily without a Court order.
Counsel referred the magistrate to the decision of Williams v Hand[5] and the magistrate raised the decision of Clayton v Hall.[6]
[5][2014] VSC 527.
[6][2008] VSC 172.
The magistrate observed that he had made the note and that his terminology appeared to indicate entry of consent to summary jurisdiction. He also noted that it was his practice to engage in a ‘formal process … to determine summary jurisdiction’. The magistrate proposed to stand the matter down to consider the position. The prosecutor informed the magistrate that the matter had a long history and that there were three civilian witnesses present and ready to give evidence.
Counsel for the appellant submitted that the matter could not proceed as a summary hearing without an order of the Court and it was always a question for the Court to determine whether indictable matters are appropriate to be heard summarily.
The matter was briefly stood down for the magistrate to read the two authorities referred to and to consider the question of jurisdiction. When the matter resumed, counsel for the appellant reiterated his primary submission that the appellant had not consented to summary jurisdiction and, in the alternative, applied for leave to withdraw the consent.
The magistrate then said that he had reviewed the facts and that he had made a note that ‘used the words consent to summary jurisdiction, but also included … that it was entered’. He added that: ‘[t]his is a notation I use routinely … it followed an explanation of rights, and it followed consent having been given and formally entered by an accused person’. He then said he was ‘satisfied that consent to summary jurisdiction was entered pursuant to [s] 29(1)(b) of the [CPA] … on the 26th of March 2018.’ The magistrate said that he had made the record with the authority of Clayton v Hall[7] in mind ‘to clarify the fact of consent to summary jurisdiction.’ The magistrate determined that an order was not required because that would be inconsistent with s 29 of the CPA.
[7][2008] VSC 172.
The magistrate then said that he would entertain the application for leave to withdraw consent.
The magistrate said that he would ordinarily seek to be informed by one party or another about the allegations ‘in a very basic form’, noting his understanding that the charges involved theft or alternatively dishonest misappropriation of property of less than $5,000. The prosecutor then confirmed that the charges involved allegations of theft of less than $5,000 from the appellant’s employer over four transactions.
The appellant then gave evidence in support of her application. She said that she was arrested and charged in December 2017 and consulted lawyers. She said that her solicitors informed her as to the nature and potential seriousness of the allegations, gave advice about potential penalties and the likelihood of success and the complexity of the matter. She said that she understood that her lawyers had indicated consent to summary jurisdiction on her behalf in March 2018.
The appellant then outlined a number of matters that she said had changed since her consent to summary jurisdiction had been given in March 2018. She said that further material had been served by the prosecution and she had spoken to her lawyers about the seriousness of the charges and complexity of the matter in light of that further material. She acknowledged that she had previously received general advice about the advantages and disadvantages of having matters heard in summary jurisdiction as opposed to trial before judge and jury.
She was then asked by her counsel to compare the legal advice that she had received about consenting to summary jurisdiction in the past compared to the advice that she had received more recently. She replied as follows:
… due to the fact that extra or … more evidence is [going] to be involved and has … come after the initial … brief was handed up, so there’s extra evidence has come in, it’s made the case more complex, … and I feel that it’s my right to have this tried before a jury that will … and I feel they will have more understanding [of] what actually … happened concerning my side of things, as opposed to just having the judge hear … one, you know one side.
The appellant was then taken through certain matters that the prosecution intended to rely on, notice of which had only recently been served. These included alleged admissions and evidence of prior acts of dishonesty. She said that she had received advice in light of that material about the seriousness of the matter and the prospects of success and, as a result of that advice, she wished for the matter to go to trial by jury.[8]
[8]Reasons [14]–[25] (citations in original).
After hearing submissions from both parties, the magistrate then delivered oral reasons, in some detail, in which he refused the applicant’s application for leave to withdraw her consent. In his reasons, the magistrate started by noting that the applicant had consented to summary jurisdiction ‘in a formal manner’ on 26 March 2018. He then said that he was satisfied that there had been ‘sufficient compliance’ with s 29(1)(b) of the Act.
The magistrate then noted that the applicant was entitled, by leave, to withdraw her consent to summary jurisdiction. He referred to Clayton v Hall[9] as authority for the proposition that in determining whether to grant such leave, the Court is to be guided by the justice of the circumstances.
[9][2008] VSC 172 (‘Clayton’).
Next, the magistrate noted the extensive procedural history since March 2018. He recorded that the matter was listed for mention in April and May 2018, and contest mentions on 23 May and 4 July 2018. The matter was listed for a contested hearing on 17 October 2018 but did not proceed on that date. It was relisted for a two-day hearing on 27 November 2018 and again adjourned to 19 March 2019. As the magistrate noted, it was the third occasion on which the matter had been listed for a final contested hearing.
The magistrate then turned to the reason why the applicant wanted trial by jury. He noted that the applicant submitted that the matter was more complex and more serious than it had been in March 2018, as a result of the recent material served by the prosecution. In that respect, he observed that the prosecution had recently provided further evidence in relation to alleged admissions, and the reliability of certain documents. The magistrate concluded that these matters did not entail a new case but amounted to additional evidence.
In a passage the subject of specific criticism by the applicant, the magistrate then said:
To the extent that … [the applicant] … asserts a right to a jury, … there is in general a right to a jury but that is not relevant to a leave application.
To the extent that [the applicant] asserts that a jury are more able to understand her side of things, … to the extent that a jury are more capable of … maybe asserted to be more capable of making an assessment of witness credibility, … I reject those assertions or any implication to that effect.
I am not persuaded that the opportunity to meet any additional evidentiary matters is denied by a summary hearing, nor would be it more advanced or improved by a jury hearing.
I am not satisfied that the complexity nor seriousness of this case … itself … means that a Magistrate or a jury is better placed to determine it.
The magistrate then referred to s 29(2) of the CPA, saying that he did not ignore those matters, although they were matters to be considered upon an application for summary jurisdiction rather than an application for leave to withdraw previously given consent. He observed that the charges involved matters that are ‘in almost every other circumstance’ dealt with summarily. Finally, the magistrate referred to the availability of Court time, and the obligation of the Court to ensure the efficient delivery of justice which would be better served by a summary hearing. Accordingly, the magistrate refused the application.
Having refused the application for leave to withdraw the applicant’s consent to summary jurisdiction, the magistrate then proceeded to hear the charges over the balance of the day (19 March 2019) and on the following day. At the conclusion of the second day’s hearing, the magistrate reserved his decision. As we have already noted, on 14 May 2019, he convicted the applicant of three of the charges and sentenced her to an aggregate term of imprisonment of four months.
The appeal under s 272 of the Act
In her appeal under s 272 of the Act, the applicant raised three points that are relevant so far as this proceeding is concerned.[10]
[10]While other points were raised in her notice of appeal under s 272, they were either abandoned in the course of the appeal to the Trial Division, or are not pursued in this Court.
First, the applicant contended that she did not consent to summary jurisdiction in accordance with the Act because, properly construed, s 29(1)(b) required that consent be given in court in the presence of the accused – and this did not occur.
Secondly, the applicant submitted that no order was made reflecting a decision to accept summary jurisdiction and, in the absence of an order, summary jurisdiction had not been lawfully invoked. As part of this argument, the applicant submitted that the magistrate had not turned his mind, on 26 March 2018, to the matters referred to in s 29(2), which he was required to have regard to in determining whether it was appropriate for the charges to be determined summarily.
Thirdly, the magistrate erred in law in refusing leave to the applicant to withdraw her consent to summary jurisdiction. As part of this argument, the applicant submitted that the magistrate made a fundamental error in his recollection of the events of 26 March 2018, in assuming incorrectly that the applicant was present at the time consent was given and summary jurisdiction entered, and that he had adopted his usual practice of explaining the nature of the choice between a summary hearing and trial by jury.
After analysing the text of s 29 of the Act, referring to other relevant provisions in the Act that described the statutory scheme, earlier forms of the relevant legislation, and a number of authorities,[11] the judge rejected the argument that an accused was required to be physically present in court at the time consent to summary jurisdiction is given. The judge said:
Consent is an essential condition for the exercise of summary jurisdiction and must be freely and genuinely given. Of course, the magistrate must be satisfied that the consent is genuine and it may be prudent to ensure that the accused is present when that occurs. However, absent some good reason, the magistrate is entitled to proceed on the basis of consent as communicated by the accused’s lawyer. That is expressly provided for in s 29(3). It would cut across that provision if s 29 were construed as requiring that the accused give the consent personally. No doubt, s 29(3) proceeds on the basis that the lawyer will have instructions from the accused to consent to summary jurisdiction and will have given advice to his or her client about the different jurisdictions.
The construction I favour does not undermine any rights of the accused. In the event that the accused has not given informed instructions to his or her lawyer to consent to summary jurisdiction, there will be no valid consent or the consent will be able to be withdrawn. In the event that the accused later says that he or she was confused, or unsure when he or she instructed the lawyer to provide consent, but not to the extent of invalidating the consent, then those matters may be canvassed on an application for leave to withdraw consent. However, I would not construe s 29 as having the effect that consent can only be effective if given in the presence of the accused or if later ratified by the accused. A consent to summary jurisdiction given by a lawyer on instructions is not conditional.[12]
[11]Including the decision of Kaye J in Clayton [2008] VSC 172.
[12]Reasons [61]–[62].
As to the need for a formal order reflecting a decision to accept summary jurisdiction, the judge said that there was nothing in the Magistrates’ Court Act 1989 or the Act which required a decision to proceed summarily to be reflected in a written order.[13] Specifically, the judge said:
There is nothing in the Magistrates’ Court Act1989 or in [the Act] which requires that the decision to proceed summarily, once the preconditions are satisfied, must be reflected in a written order in those terms. In the present case, it appears there was a notation placed on the file and a recording of the hearing was also made. In my view, no formal written order was required.[14]
[13]Ibid [67].
[14]Ibid.
The judge went on to say that he was satisfied that on 26 March 2018 the applicant, through her solicitor, consented to the charges being determined summarily. He then said:
I am also satisfied that on that occasion the magistrate determined that it was appropriate for the charges to be heard summarily. I reach that conclusion because the magistrate remanded the appellant to the Magistrates’ Court at Horsham on 27 April 2018 for a mention, and the charges were patently suitable for summary disposition. Indeed, in the course of argument, the appellant accepted that charges of this nature with limited complexity are dealt with in the Magistrates’ Court on a daily basis. There were four charges of theft (and four alternative charges of obtaining property by deception) in the amount of $794, $2,340, $440, $548, respectively, for which the available penalties in the Magistrates’ Court were obviously adequate. As at March 2018, given the appellant’s consent, and the concurrence of the prosecution, the question of whether a summary hearing was appropriate admitted of only one answer. Any contrary conclusion in the light of the facts would have been perverse.[15]
[15]Ibid [73].
The judge said he was persuaded that, ‘given the routine nature of the decision and the obvious suitability of [the charges] to be dealt with summarily’ the magistrate turned his mind to the appropriateness of the charges being determined summarily.[16] More particularly, the judge said that the applicant had not satisfied him that the magistrate had failed to have regard to the matters that were required to be taken into account in accordance with s 29(2).[17]
[16]Ibid [74].
[17]Ibid.
In relation to the magistrate’s refusal to grant leave to the applicant to withdraw her consent, the judge accepted that the magistrate assumed wrongly that the applicant was present at the time consent was given. The judge said, however, that this error ‘cast no shadow over the events of 26 March 2018 and could not alter the fact that the appellant consented to summary jurisdiction’.[18] The judge said that he was satisfied that the error had ‘no impact’ on the exercise of the magistrate’s discretion.[19] The judge went on to say that it was no part of the application to withdraw consent that the consent had been given on an uninformed basis. As the judge put it:
It was accepted in argument before me that the lawyer had informed instructions to consent on behalf of the appellant. It follows that the magistrate’s erroneous recollection did not infect the decision to refuse leave. Whether the appellant was present at the hearing on 26 March 2018 was irrelevant to her submission that leave should be given.[20]
[18]Ibid [79].
[19]Ibid.
[20]Ibid [82].
The legislative provisions
In his reasons for judgment, the judge described in some detail the relevant legislative provisions.[21] We gratefully adopt that description. For present purposes, however, it is only necessary for us to set out the terms of s 29 of the Act. Section 29 relevantly provides:
[21]Ibid [33]–[48].
29When an indictable offence may be heard and determined summarily
(1) The Magistrates’ Court may hear and determine summarily a charge for an offence to which section 28(1) applies if —
(a) the court considers that the charge is appropriate to be determined summarily, having regard to the matters in subsection (2); and
(b) the accused consents to a summary hearing.
(2) For the purposes of subsection (1)(a), the Magistrates’ Court must have regard to —
(a) the seriousness of the offence including —
(i)the nature of the offence; and
(ii) the manner in which the offence is alleged to have been committed, the apparent degree of organisation and the presence of aggravating circumstances; and
(iii) whether the offence forms part of a series of offences being alleged against the accused; and
(iv) the complexity of the proceeding for determining the charge; and
(b) the adequacy of sentences available to the court, having regard to the criminal record of the accused; and
(c) whether a co-accused is charged with the same offence; and
(d) any other matter that the court considers relevant.
(3) A legal practitioner appearing for an accused may, on behalf of the accused, consent to a summary hearing of a charge for an indictable offence.
…
Ground 1: was the applicant required to be physically present when giving consent?
In relation to ground 1, the applicant observed that it is a fundamental right of a person charged with an indictable offence to be tried before a judge and jury, and this right may only be waived by consenting to summary jurisdiction. It was then submitted that at the time the applicant’s solicitor consented to summary jurisdiction on the applicant’s behalf, the magistrate ‘could not have determined to grant summary jurisdiction’ because:
·the applicant was not physically present in the court room;
·the magistrate could not adopt his usual practice of explaining the rights of an accused to proceed to trial by jury;
·the magistrate was undecided about whether the case should be adjourned to a further summary case conference or contest mention; and
·the prosecutor said that there might be a further witness, that on the next occasion the parties would be in a position to indicate whether there would be a contest or plea of guilty, and that a short adjournment would be productive.
The applicant also submitted that, ‘where material events had transpired after the applicant’s solicitor had consented to summary jurisdiction on her behalf’, it was incumbent upon the magistrate to treat the consent as ‘provisional’ and, in order to accord her procedural fairness, give her an opportunity to reconsider her position.
Thus, the applicant submitted that the judge should have held that a valid consent to summary jurisdiction pursuant to s 29(1)(b) is consent that is given in the physical presence of the applicant, and erred in failing to so hold.
The respondent supported the reasoning of the judge. Specifically, the respondent submitted that the text of s 29(1)(b) of the Act does not import a requirement of physical presence before a valid consent to summary jurisdiction can be furnished. Moreover, s 29(3) provides that a legal practitioner appearing for an accused may, on behalf of the accused, consent to summary jurisdiction.
Additionally, the respondent submitted that there was no merit in the applicant’s argument because, on 4 July 2018, the applicant was physically present when the parties completed the Request for Contested Summary Hearing form, in which the question ‘Does the accused consent to summary jurisdiction?’ was ticked ‘Yes’. The respondent submitted that the hearing conducted on 4 July 2018 ‘presents as an insurmountable obstacle to success’ for the applicant on ground 1, given that she was physically present at the hearing on the day this form was completed.
In our view, the magistrate was plainly correct when he ruled that the applicant’s consent to summary jurisdiction was validly given on 26 March 2018, and the judge was correct to so hold. There is simply no warrant for importing into s 29 a requirement that consent cannot be given unless the accused is physically present in court at the time. As the judge correctly observed, ss 328, 329 and 330 of the Act draw a distinction between an accused appearing and attending. While an accused is required to attend some hearings, he or she may appear by a legal practitioner for others.[22] Again, as the judge said, no provision of the Act required the applicant to attend in person to at the time consent to summary jurisdiction was given by her solicitor (the applicant having been excused as permitted by s 330(3) of the Act).[23]
[22]Reasons [45]-[48].
[23]Ibid [47]-[48].
The accused was granted an indulgence by the magistrate to permit her to be absent from court when the matter was called on 26 March 2018. Her solicitor, in accordance with the terms of s 29, gave the applicant’s consent to summary jurisdiction. For the reasons given by both the magistrate and the judge, there was no basis for treating the consent given by the applicant’s solicitor as provisional or requiring subsequent ratification by the applicant in person (or physically present in court).
Further, we agree with the respondent’s submission that, in any event, the applicant’s physical presence at the contest mention hearing under s 55 of the Act on 4 July 2018 when her consent to summary jurisdiction was recorded in the form completed by the parties provides an additional basis for rejecting ground 1.
Ground 2: was an order of the Court recording the granting of summary jurisdiction required?
In relation to ground 2, the applicant submitted that the jurisdiction to conduct a summary hearing of indictable charges is enlivened only when two conditions are satisfied under s 29(1):
(a) consent from the accused; and
(b)the Court considers that ‘the charges appropriate to be determined summarily, having regard to the matters in sub-s (2)’.
The applicant then submitted that in the absence of any evidence to show fulfilment of the second of these conditions (contained in s 29(1)(a)), the Magistrates’ Court did not have jurisdiction to conduct the summary trial.
The applicant contended that there was nothing in the Magistrates’ Court record to show fulfilment of the ‘appropriateness’ condition. Specifically, neither the order made on 26 March 2018, nor the transcript, nor the notation on the court file referred to by the magistrate, indicated fulfilment of the condition. It was thus submitted that the judge erred in failing to hold that the Magistrates’ Court had no jurisdiction to embark on the summary hearing.
Again, the respondent supported the reasoning of the judge. In addition, the respondent observed that the text of s 30(6) of the Act (dealing with the procedure for indictable offences that may be heard and determined summarily) speaks in terms of granting, rather than ordering, a summary hearing. The respondent submitted that this provided further support for the proposition that no formal order was required.
In our view, there is nothing in the applicant’s arguments under this ground. Nothing in the Act, and no principle of law, requires the authentication or completion of some formal order in relation to the granting of summary hearings in accordance with s 29 of the Act. The magistrate was correct to so hold for the reasons given by him, as was the judge. When one examines the transcript of the hearing on 26 March 2018 and notes the disposition on that day and subsequent days on which the charges were listed, there can be no doubt that the magistrate granted summary jurisdiction and the proceeding thereafter was placed into, and remained in, the summary stream of cases. Again, the magistrate was correct to so conclude, as was the judge.
Additionally, and to the extent that this was put in issue by the applicant under this ground, we agree with the judge that there is no basis for concluding on the material that the magistrate, on 26 March 2018, failed to have regard to the matters set out in s 29(2).
Ground 3: the judge’s treatment of the s 29(2) issue
Under ground 3, the applicant contended that the judge erred in concluding that the magistrate had determined that it was appropriate for the charges to be heard summarily. The applicant submitted that the judge should have held that the court record did not support the conclusion that the magistrate had given proper consideration to the matters set out in s 29(2) of the Act.
Additionally, complaint was made by the applicant that, in coming to his conclusion that the magistrate had determined that it was appropriate to grant summary jurisdiction, the judge took into account an irrelevant consideration — namely, his view that the charges were ‘patently suitable for summary disposition’.
The respondent submitted to the contrary, that the magistrate’s notation on the court file that summary jurisdiction had been entered reflected his determination that it was appropriate for the charges to be heard summarily. It was submitted that the trial judge reached this conclusion because the charges were ‘patently suitable’ for summary disposition and the magistrate had remanded the matter for further mention on 27 April 2018. The remand was granted because ‘further case conferencing’ was required — with the prospect that the matter might ultimately resolve into a plea.
In our view, there is nothing in the applicant’s complaint about the judge’s observation that the charges were patently suitable for summary disposition. That proposition could hardly be gainsaid. Moreover, the contrary proposition (that the matter might be so complex or large as to make summary jurisdiction inappropriate) would tell against consideration having been given to the matters set out in s 29(2). In those circumstances, it was well open for the judge to observe, as a foundation for a conclusion that the magistrate properly considered the summary jurisdiction question, that the charges were patently suitable for such a disposition.
Thus, when one looks at all of the relevant circumstances of the case, including the nature of the offences, the amounts alleged to have been taken and what was said in court on 28 March 2018, there was no error in the judge saying that it could not be affirmatively concluded that the magistrate did not have regard to the matters set out in s 29(2) of the Act. It follows that ground 3 must be rejected.
Grounds 4 and 5: the magistrate’s erroneous assumption that the applicant was present on 26 March 2018
In her written case in this Court, the applicant’s argument under grounds 4 and 5 was as follows:
It is indisputable that Magistrate Saines was wrong in his belief that the applicant was present before him when her solicitor gave consent to summary jurisdiction.
Magistrate Saines’ usual practice was to explain the rights to proceed to trial by jury. Magistrate Saines must have adopted that practice in order to satisfy himself that the consent was voluntary and informed. Reasons [sic].
It follows that as the applicant was not present before him on 26 March 2018, Magistrate Saines could not have been satisfied the applicant’s ‘consent’ was given voluntarily and with full knowledge and understanding of the consequences. Reasons [78]–[79].
It then follows that Magistrate Saines might have, in fairness to the Applicant, taken into account the fact that she had not had the benefit of him explaining to her the rights to proceed to trial by jury. Then he might have acceded to the applicant’s application to withdraw her ‘consent’.
In answer to these submissions, the respondent again supported the reasoning of the judge. The respondent contended that the applicant’s submissions were untenable because there was no issue (either before the magistrate or before the judge) that the applicant had been properly informed of her rights and had given informed instructions to her solicitor to consent to summary jurisdiction on her behalf. Thus, any failure by the magistrate to duplicate this process could not properly have been of any consequence in the outcome of the application for leave to withdraw the applicant’s consent to summary jurisdiction.
In our view, the respondent’s submissions are plainly correct. There is, however, a further reason why any misunderstanding by the magistrate, on 19 March 2019, about the issue of whether the applicant was present in court on 26 March 2018 does not give rise to any question or error of law entitling the applicant to relief under s 272 of the Act.
As was submitted by the applicant, the transcript of 19 March 2019 reveals the misunderstanding relied upon by her on the appeal before the judge and in this Court. It is noteworthy, however, that the magistrate’s stated misapprehension was not corrected by the applicant’s counsel (who although not having been present at the hearing on 26 March 2018, was instructed by Mr Moore who was, as we have already said, present at that hearing) when it occurred. In fairness to counsel and Mr Moore, we suspect that the magistrate was not corrected because there was no issue that the applicant had received full and appropriate advice from her solicitor, and that she had given informed consent (through her solicitor) to summary jurisdiction being granted. In such circumstances, the fact that the magistrate had not explained the choices available to the applicant could not have been of any moment in determining whether she should have been permitted on 19 March 2019 to withdraw her consent to summary jurisdiction.
It follows from the above that grounds 4 and 5 must be rejected.
Conclusion
The applicant’s proposed appeal does not have a real prospect of success. Accordingly, leave to appeal must be refused.
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