Colleen Treloar v David Leigh Richardson - [2020] VSCA 216

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…

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.

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Details

Case: [2020] VSCA 216
Decision Date: 28 August 2020

CaseChat Overview and Summary

Colleen Treloar sought to appeal against the decision of the Magistrates' Court of Victoria to hear and determine summarily charges that were originally indictable. The dispute involved David Leigh Richardson, who was facing charges that, under normal circumstances, would have been heard by the County Court or Supreme Court on indictment. The matter was considered in the Court of Appeal, which had to determine whether the Magistrates' Court had the jurisdiction to proceed summarily and whether there had been any errors in the process.

The primary legal issues before the court were whether the Magistrates' Court had correctly exercised its jurisdiction to hear the indictable charges summarily, whether Richardson had validly consented to the summary hearing, and whether any procedural requirements had been overlooked. Specifically, the court examined if Richardson's consent to the summary hearing was properly obtained, whether he needed to be present when this consent was given, and if a formal order was necessary. Additionally, the court considered whether the magistrate had erred in refusing Richardson leave to withdraw his consent to the summary hearing.

The Court of Appeal held that the Magistrates' Court had the authority to proceed summarily if all parties consented, provided the accused was informed of their right to a jury trial. The court found that there was no requirement for a formal order to be made for the consent to be valid. It was determined that Richardson's consent had been properly obtained and that he did not need to be present when this consent was given. The Court of Appeal concluded that the magistrate did not err in refusing to allow Richardson to withdraw his consent. Consequently, the application for leave to appeal was refused.

Orders