Director of Public Prosecutions v Venier-Moro
[2015] VSC 704
•15 December 2015
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S CI 2015 03939
| DIRECTOR OF PUBLIC PROSECUTIONS (on behalf of Jason BARRY-BASSETT) | Plaintiff |
| v | |
| JAMANE VENIER-MORO | First Defendant |
| and | |
| THE COUNTY COURT OF VICTORIA | Second Defendant |
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JUDGE: | J FORREST J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 1 December 2015 |
DATE OF JUDGMENT: | 15 December 2015 |
CASE MAY BE CITED AS: | DPP v Venier-Moro & anor |
MEDIUM NEUTRAL CITATION: | [2015] VSC 704 |
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JUDICIAL REVIEW – Jurisdiction – Sentencing – Order for diversion – Consent as precondition for ordering diversion – Criminal Procedure Act 2009 (Vic), s 59 – Orders quashed – Remitted back to County Court.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr D A Trapnell QC | Ms V Anscombe, Acting Solicitor for Public Prosecutions |
| For the First Defendant | Mr P G Nash QC with Mr J Lavery | Tony Danos Lawyers |
| For the Second Defendant | No appearance |
HIS HONOUR:
Introduction
The first defendant, Jamane Venior-Moro, was charged with possession of prohibited substances (methylamphetamine and ecstasy). On appeal from the Magistrates’ Court, the County Court judge ordered that he attend a diversion program, seemingly acting under s 59 of the Criminal Procedure Act 2009 (Vic) (CPA). The plaintiff, the Director of Public Prosecutions (DPP), now applies for judicial review under O56 of the Supreme Court (General Civil Procedure Rules) 2015, arguing that the County Court judge had no power to order diversion, and thus lacked jurisdiction to make that order.
Although there were several side issues concerning the regularity of the County Court judgment, the DPP’s primary argument went to subject matter jurisdiction: that, without the consent of the prosecution, as required by s 59(2)(c) of the CPA, the County Court judge had no power to order that Mr Venier-Moro participate in a diversion program.
For reasons which I will set out below, I am satisfied that:
(a) the County Court judge did not have the jurisdiction to make the orders;
(b) his Honour’s orders should be quashed; and
(c) the appeal should be remitted to be re-heard in the County Court according to law.
It is necessary to examine what transpired in the Magistrates’ Court at the original hearing, the hearing at the County Court on appeal, and the orders made by the County Court.
Division 2 of the Criminal Procedure Act
The relevant sections of the CPA are as follows:
59 Adjournment to undertake diversion program
…
(2)If, at any time before taking a formal plea from an accused in a criminal proceeding for a summary offence or an indictable offence that may be heard and determined summarily—
(a)the accused acknowledges to the Magistrates' Court responsibility for the offence; and
(b)it appears appropriate to the Magistrates' Court, which may inform itself in any way it considers appropriate, that the accused should participate in a diversion program; and
(c)both the prosecution and the accused consent to the Magistrates' Court adjourning the proceeding for this purpose—
the Magistrates' Court may adjourn the proceeding for a period not exceeding 12 months to enable the accused to participate in and complete the diversion program.
(3)An accused's acknowledgment to the Magistrates' Court of responsibility for an offence is inadmissible as evidence in a proceeding for that offence and does not constitute a plea.
(4)If an accused completes a diversion program to the satisfaction of the Magistrates' Court—
(a) no plea to the charge is to be taken; and
(b)the Magistrates' Court must discharge the accused without any finding of guilt; and
(c)the fact of participation in the diversion program is not to be treated as a finding of guilt except for the purposes of—
(d)the fact of participation in the diversion program and the discharge of the accused is a defence to a later charge for the same offence or a similar offence arising out of the same circumstances.
(5)If an accused does not complete a diversion program to the satisfaction of the Magistrates' Court and the accused is subsequently found guilty of the charge, the Magistrates' Court must take into account the extent to which the accused complied with the diversion program when sentencing the accused.
I should make a couple of observations about s 59. First, as is apparent, it sets up a scheme that does not require a plea (be it of guilty, or not guilty) or a conviction. Rather, it envisages an adjournment of the charge whilst the accused participates in a diversion program (whatever that may be). If the accused successfully completes the diversion program within the prescribed period, he or she can be discharged; if not, the charge is heard and determined in accordance with a plea.
Second, the power (or the jurisdiction) of the Court is conditional upon satisfaction of the three conditions of sub-section 59(2). Of significance in this case is clause (c): that is, the requirement that both the prosecution and the accused consent to the Court adjourning the proceeding to allow for the accused to undertake the program.
The Magistrates’ Court hearing
Mr Venier-Moro was charged on 9 April 2014 with possession of methylamphetamine and ecstasy.
On 13 November 2014, he appeared before Magistrate Bakos in the Melbourne Magistrates’ Court.
There is no transcript of what occurred at the hearing. However, the following matters emerge from the affidavit material filed in this application:[1]
[1]Affidavits of Winnie Wang sworn 5 August and 1 December 2015.
(a) No diversion notice can be found on the police brief.
(b) The informant asserts that he did not sign a diversion notice.
(c) No diversion notice can be located on the County Court file.
(d) No diversion notice can be located on the OPP file.
The Magistrate’s sentencing order was as follows:
Without conviction, Adjourned to MELBOURNE MAGISTRATES’ COURT on 12/11/2015 at 9.30am;
Accused released upon giving an Undertaking starting on 13/11/2014.
To appear before adjourned date if called upon during the period of adjournment.
Accused to be of good behaviour during the period of adjournment. Forfeiture order made by consent; andOrder all Drugs/Instruments seized be forfeited and destroyed.
The above history is significant. There is reference in the County Court appeal transcript (at paragraph [20] below) which implies that in the Magistrates’ Court the prosecution consented to the accused undertaking a diversion program. I will set out those parts of the transcript when I examine what occurred at the hearing before the County Court judge.
It suffices to say, for present purposes, that, absent production of the document, and in light of the other evidence to which I have referred, I am not satisfied that the prosecution filed any notice indicating consent in the Magistrates’ Court. Indeed, although by no means conclusive, the way in which the matter progressed in the Magistrates’ Court is consistent with a lack of consent, as is the silence from Mr Venier-Moro as to whether such consent ever existed.
The County Court appeal and orders
Before turning to what occurred in the County Court on appeal, it is necessary to say something about the nature of this application. I do so for a specific purpose: if I am wrong about what happened in the Magistrates’ Court, and there was, in fact, consent given by the prosecution, then the nature and characterisation of the County Court appeal is relevant.
Sections 254 and 256(1) and (2) of the CPA read as follows:
254 Right of appeal
A person convicted of an offence by the Magistrates’ Court in a criminal proceeding conducted in accordance with Part 3.3 may appeal to the County Court against—
(a)the conviction and sentence imposed by the court; or
(b)sentence alone.
…
256 Determination of appeal
(1)An appeal under section 254 must be conducted as a rehearing and the appellant is not bound by the plea entered in the Magistrates’ Court.
(2) On the hearing of an appeal under section 254, the County Court—
(a) must set aside the sentence of the Magistrates' Court; and
(b)may impose any sentence which the County Court considers appropriate and which the Magistrates’ Court imposed or could have imposed; and
(c)may exercise any power which the Magistrates’ Court exercised or could have exercised.
The Court of Appeal, in its recent decision of Quick v Creanor; Taylor v Wilkins,[2] held that the re-hearing referred to in s 256(1) is essentially a re-start of the process from the time the charges are laid in the Magistrates’ Court. The salient parts of the Court’s reasons are as follows:
Plainly enough, that is a provision of very broad scope, intended to place the County Court in the same position as the Magistrates’ Court and with complete control over the criminal proceedings before it. It follows that, on an appeal from the Magistrates’ Court, the County Court can exercise the power of reinstatement just as the Magistrates’ Court could have done.
This conclusion is reinforced by the nature of an appeal to the County Court. Section 256(1) of the CPA provides that an appeal under s 254 must be conducted ‘as a re-hearing’. That provision, and its predecessors in the Magistrates’ Court Act and the Justices Act, have long been understood as requiring the County Court to conduct a hearing de novo. In other words, the Court starts afresh. Thus, for example, amendments made to a charge by the Magistrates’ Court are of no effect before the County Court. As Hargrave J correctly stated in Candolim Pty Ltd v Garrett, the effect of ss 85 and 86 of the Magistrates’ Court Act 1971 (which are relevantly the same as s 256(1) and s 256(2)(a) of the CPA), is ‘... that everything which happened in the Magistrates’ Court is to be disregarded on the hearing of the County Court appeal’.
…
The charges which brought each of the two respondents before the Magistrates’ Court were those which had been filed with that court. In accordance with the above principles, on appeal to the County Court everything that happened in the Magistrates’ Court — including the making of orders striking out charges — is to be disregarded. That Court’s orders must be ‘formally set aside ... or deemed to be set aside’.[3]
[2][2015] VSCA 273.
[3]Ibid, [18] – [19], [21].
Accordingly, when the County Court judge commenced the appeal, his Honour was, in practical terms, starting from scratch. Any consent to the diversion program that may have been provided at the Magistrates’ Court was of no relevance to his Honour’s determination on appeal. In other words, the question of consent, and thus satisfaction of s 59(2)(c), had to be addressed on the material before the County Court.
On the hearing of this application it was not suggested that any consent, express or implied, was given by the prosecution on the appeal. No formal written consent was filed by the prosecution, and there is no other evidence that the prosecution agreed to a diversion program. Rather, and I will expand slightly on this later, it was submitted that the prosecutor did not, in terms, put the question of consent to the diversion program in issue in the County Court.
Before I go to the relevant aspects of the transcript, I should mention that it is undoubted that, at the County Court hearing, the focus was upon another discrete aspect of the Court’s jurisdiction: whether, on a re-hearing, that Court had the power to make an order under s 59. I will not set out all the parts of the discussion related to that argument; rather, I extract below the exchanges surrounding the question of the consent of the prosecution to the diversion program:
MR NIBBS:It’s the way the legislation is worded. If you look at s 254 of the Criminal Procedure Act, the way that you get into this court is by appealing a sentence order, and a diversion is not a sentencing order. So it’s the mechanism which brings you to this court, then you have the powers to act as a magistrate. The issue that the OPP take is that diversion is purely something for the Magistrates’ Court and that alone and doesn’t become part of the power that you have on an appeal.
HIS HONOUR: If I make an order will they review it? I’ll do it to get it sorted out.
MR NIBBS: Yes, Your Honour.
HIS HONOUR: Will they?
MR NIBBS: Yes, Your Honour.
HIS HONOUR: I’ll do it. Then it will get sorted. I’d be delighted if they review it. That will fix it.[4]
[4]Transcript of Proceedings, Informant v Venier-Moro (County Court of Victoria, AP-14-2900, Judge Pilgrim, 1 June 2015) 1 – 2 (‘Transcript’).
There was then further discussion concerning the appellate process, which led to the following exchange:
MR NIBBS:But to do that you have to enter the plea of guilty, and that’s not what part of the diversion process is. The point that you’ve made that should you allow it and the matter gets reviewed, well, that’s something which certainly is a mechanism which is there as well in terms of for the Crown. But that’s the situation from the Crown’s perspective.
HIS HONOUR: I understand that and you’ve got to argue it. You mightn’t be given a brief again if you didn’t behave according to your instructions.
MR NIBBS:No. And the other difficulty that also is – for the diversion process, as it stands the prosecution also have to consent to diversion.
HIS HONOUR: And they’re not.
MR NIBBS: That’s correct. And the - - -
HIS HONOUR: Did the police officer consent down there?
MR NIBBS:I don’t know. I would assume so if it was going through the diversion process because the police have to sign a notice consenting to diversion, so it can’t be - - -
HIS HONOUR: I just had one.
MR NIBBS: Sorry?
HIS HONOUR: I just had one in my hand.
MR NIBBS:Yes, Your Honour. So I would assume that the prosecution – or the police have consented to it. But then once its’ knocked back by a magistrate, then these mechanisms take place.
HIS HONOUR: Well, that’s interesting too isn’t it? The informant has signed a consent and it comes here and somebody else doesn’t sign it.
MR NIBBS: No, but the situation is that - - -
HIS HONOUR: I’ve missed something have I?
MR NIBBS:A decision is made by the police prosecutors to allow diversion. A magistrate, using their discretion, has said no. And if you take the sentencing scenario here where both the prosecutor and defence might both concede an immediate term of imprisonment is not required but a judge will turn around and say no. Both parties have put a matter up. A magistrate, exercising their discretion, has said no and not allowed diversion. So the plea of guilty then has gone in and the sentence has been imposed. That’s then been made subject to an appeal and once in this jurisdiction, the Crown will not consent because it doesn’t concede that this court has the jurisdiction. So, yes, there’s a difference in terms in the Magistrates’ Court there was – the prosecution had consented. The difference here is that the prosecution - - -
HIS HONOUR: Did Bakos give reasons for why she wouldn’t do it?
MR NIBBS: Generally the magistrates won’t give - - -
HIS HONOUR: Why?
MR NIBBS:Well, generally it’s done by a duty magistrate behind doors. I’ve been in the situation where – as I described with my learned friend, where we’d sought a diversion for a matter, a magistrate had knocked us back, we then fronted a different magistrate for the plea and - - -
HIS HONOUR: So, what, did they give it?
MR NIBBS:Well they said, “Why hasn’t this been put through diversion?” So I like - - -
HIS HONOUR: It’s untidy isn’t it?[5]
[5]Transcript 3 - 5.
Ultimately, his Honour allowed the appeal on charges 1 and 2, as follows:
The orders imposed at the Magistrates’ Court of Victoria on 13/11/2014 are set aside, and in their stead the following orders are made:
Appeal against conviction and sentence allowed. Charge(s) dismissed.
His Honour then went on to make the following orders in relation to the diversion program:
Order that the matter be adjourned to 24/08/2015 at Melbourne.
Order – Diversion program with the following conditions:
- $500 to be paid to the Anti Cancer Council
- Recommended to undertake alcohol and drug counselling within the adjournment period, if possible.
Analysis
Jurisdiction
The High Court (Gleeson CJ, Gummow, Hayne, Heydon and Crennan JJ) in Berowra Holdings Pty Ltd v Gordon[6] said as follows:
[6](2006) 225 CLR 364.
In this context the term ‘jurisdiction’ must be understood in the second of the senses referred to in Lipohar v The Queen:
“Jurisdiction” may be used (i) to describe the amenability of a defendant to the court's writ and the geographical reach of that writ, or (ii) rather differently, to identify the subject matter of those actions entertained by a particular court, or, finally (iii) to locate a particular territorial or “law area” or “law district”.
In the joint judgment of five members of this Court in Plaintiff S157/2002 v Commonwealth, reference was made to a “basic rule” that a legislature does not intend to cut down the jurisdiction of the courts “save to the extent that the legislation in question expressly so states or necessarily implies”. Earlier, in Parisienne Basket Shoes Pty Ltd v Whyte, Dixon J said:
[I]f the legislature does make the jurisdiction of a court contingent upon the actual existence of a state of facts, as distinguished from the court's opinion or determination that the facts do exist, then the validity of the proceedings and orders must always remain an outstanding question until some other court or tribunal, possessing power to determine that question, decides that the requisite state of facts in truth existed and the proceedings of the court were valid. Conceding the abstract possibility of the legislature adopting such a course, nevertheless it produces so inconvenient a result that no enactment dealing with proceedings in any of the ordinary courts of justice should receive such an interpretation unless the intention is clearly expressed.[7]
[7]Ibid 375, [30]–[31] [Citations omitted].
In this case, the existence of consent was a requisite fact, or precondition, to the County Court’s power to make orders for a diversion program. There was no evidence before the County Court judge that such consent (which had to come from the prosecution) was given. No consent document was produced; no oral consent was given.
The County Court did not have jurisdiction to make orders that Mr Venier-Moro participate in a diversion program.
Other problems with the entry of judgment
Counsel for the DPP identified several other problems with the entry of judgment, none of which are fatal, but should be mentioned.
First, the County Court judge dismissed charges 1 and 2. This is inconsistent with the scheme of s 59 (and its heading): the scheme requires an adjournment of the charges to undertake a diversion program and then, at a later point in time, further orders depending upon the accused’s participation in the program.
Second, it is implicit from the scheme of s 59 that the accused must be required to participate in a particular diversion program. It was not sufficient to refer generically to a diversion program.
What order should now be made?
Counsel for Mr Venier-Moro submitted that the Court, on judicial review, has a wide discretion as to what it should do if it is satisfied that an error of law or jurisdictional error (whichever may be applicable) has been made out.
In essence, it was said that I should use my discretion to order that the County Court order should stand. The basis for this submission was the alleged failure of the prosecutor at the County Court hearing hearing to dispute the question of consent, and his election to focus on the alternative jurisdictional argument. In addition, it was said that I should have regard to Mr Venier-Moro’s compliance with the terms of the County Court orders by undertaking a Brief Intervention Program (which he completed in June this year).
I do not accept that the prosecutor did not attempt to put the question of consent before the County Court judge. On any reading of the transcript, it is evident that the hearing was driven by the judge, and not counsel. I mean no disrespect to the learned judge – who is vastly experienced in these matters and who was, presumably, trying to deal with the matter expeditiously.
However, I am satisfied, on a fair reading of the transcript that counsel endeavoured to put the proposition of lack of consent fair and square. The prosecutor made it clear when he identified ‘the other difficulty for the diversion process… at it stands the prosecution also have to consent to diversion,’ to which his Honour interjected ‘and they’re not,’ to which counsel replied ‘that’s correct’.[8]
[8]Transcript 3.
In my view, that was more than sufficient to put the matter before the judge for his determination. Contrary to the submissions of counsel for Mr Venier-Moro, I am not satisfied that what was said later by the prosecutor in relation to the decision made by the police prosecutors to allow diversion (see paragraph [20] above) departed from the proposition that had been advanced earlier regarding the necessity of consent at the appeal hearing.
In other words, the point was raised and not dealt with in the County Court. In those circumstances, I see no reason why orders should not be made quashing the orders of the County Court and remitting the case to the County Court for reconsideration in accordance with law.
Orders
I will make orders in the following terms, that:
(a) the plaintiff’s application filed 30 July 2015 by way of originating motion is allowed;
(b) the orders made by Judge Pilgrim on 1 June 2015 in proceeding AP-14-2900 in the County Court of Victoria are quashed;
(c) the proceeding is to be reheard de novo in accordance with law by the County Court.
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