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DPP v Archer

DPP v Archer

Case [2018] VSC 155 6 April 2018

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IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST

S CI 2018 00334

DIRECTOR OF PUBLIC PROSECUTIONS (ON BEHALF OF ADAM DONNELLY)	Applicant
– and –
GLENN ARCHER	First respondent
– and –
COUNTY COURT OF VICTORIA	Second respondent

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JUDGE:	Bell J
WHERE HELD:	Melbourne
DATE OF HEARING:	6 April 2018
DATE OF JUDGMENT:	6 April 2018
CASE MAY BE CITED AS:	DPP v Archer
MEDIUM NEUTRAL CITATION:	[2018] VSC 155

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CRIMINAL LAW – application for judicial review – first respondent convicted and sentenced for unlawful assault by Magistrates’ Court of Victoria – appeal to County Court of Victoria not brought within 28 days – first respondent given inadequate legal advice but acted promptly after retaining specialist criminal lawyers – judge of County Court of Victoria granted leave to appeal under s 263(2)(a) of the Criminal Procedure Act 2009 (Vic) – whether erred in law in finding that exceptional circumstances were established and exercising discretion to grant leave to appeal – whether took irrelevant or failed to take relevant considerations into account – whether inadequate legal advice given to first respondent could be considered as part of explanation for delay – whether judge took into account merits of proceeding in Magistrates’ Court and prospects of appeal – ‘exceptional circumstances’ – Supreme Court (General Civil Procedure) Rules 2015 (Vic) O 56.

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APPEARANCES:	Counsel	Solicitors
For the applicant	Mr R L Gibson	Office of Public Prosecutions
For the first respondent	Mr E Kelly	Stary Norton Halphen
For the second respondent	No appearance	No appearance

HIS HONOUR:

In June 2017, an incident occurred at a junior football game in Heidelberg which led to Glenn Archer being charged with unlawful assault by Adam Donnelly, a police officer. The charge was heard in the Magistrates' Court at Heidelberg on 1 September 2017 before Magistrate Lamble. Mr Archer pleaded guilty to the charge after receiving certain legal advice as to the likely outcome of the hearing. That advice followed discussions between his then legal representative with the prosecution. Contrary to Mr Archer’s expectations, with conviction her Honour fined him the sum of $2,000 plus costs and ordered that he pay compensation of $955. Her Honour took into account that Mr Archer had two prior, if historical, offences of like kind. During the course of the hearing, the magistrate quite properly made clear to Mr Archer's legal representative that, whatever discussions had occurred between the prosecution and the defence, sentencing was entirely a matter for her. Mr Archer’s legal representative continued with the hearing anyway.
When the sentence was announced by her Honour and after the hearing, Mr Archer made clear in various ways that he was unhappy with the outcome of the case. On 21 September 2017 and within the 28 day appeal period, his legal representative filed with the court an unsigned notice of appeal against sentence to the County Court of Victoria. At the request of the Magistrates' Court at Heidelberg, his…

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 DPP v Archer

Details

AGLC: Director of Public Prosecutions v Archer [2018] VSC 155
Case: [2018] VSC 155
Decision Date: 6 April 2018

CaseChat Overview and Summary

The matter before the court involved an application for judicial review of a decision made by a judge of the County Court of Victoria. The first respondent, having been convicted and sentenced for unlawful assault by the Magistrates’ Court of Victoria, had sought leave to appeal to the County Court of Victoria. However, the appeal was not brought within the required 28 days. The first respondent had received inadequate legal advice but acted promptly once specialist criminal lawyers were retained. The judge of the County Court of Victoria granted leave to appeal under section 263(2)(a) of the Criminal Procedure Act 2009 (Vic), raising questions about whether the judge had erred in law in finding that exceptional circumstances were established and in exercising the discretion to grant leave to appeal. It was also questioned whether the judge took into account relevant considerations, failed to consider irrelevant ones, and whether the inadequate legal advice could be considered in explaining the delay.

The central legal issues before the court were whether the judge had erred in law by finding that exceptional circumstances were established and in exercising the discretion to grant leave to appeal. It was also examined whether the judge took into account relevant considerations, failed to consider irrelevant ones, and whether the inadequate legal advice could be considered in explaining the delay. Additionally, it was questioned whether the judge took into account the merits of the proceeding in the Magistrates’ Court and the prospects of the appeal.

In delivering the judgment, the court considered the relevant statutory provisions and case law. It found that the judge had not erred in law in finding that exceptional circumstances were established. The court held that the first respondent’s prompt action upon receiving specialist legal advice, despite the initial inadequate advice, constituted an explanation for the delay in bringing the appeal. The court also held that the judge had appropriately considered the merits of the proceeding in the Magistrates’ Court and the prospects of the appeal. The court concluded that the judge had not taken into account irrelevant considerations or failed to take relevant considerations into account, and that the decision to grant leave to appeal was not an error of law.

The court dismissed the application for judicial review. The orders made by the judge of the County Court of Victoria were affirmed, and the first respondent’s appeal to the County Court of Victoria was allowed.

Orders