DPP v Diamond - [2004] VSC 35

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CAUSES JURISDICTION

No.7724 of 2003

DIRECTOR OF PUBLIC PROSECUTIONS (ON BEHALF OF IMOGEN HORLOR)	Appellant
v
LEON DAVID DIAMOND	Respondent

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JUDGE:	KAYE J
WHERE HELD:	MELBOURNE
DATES OF HEARING:	11, 12 February 2004
DATE OF JUDGMENT:	17 February 2004
CASE MAY BE CITED AS:	Director of Public Prosecutions v Diamond
MEDIUM NEUTRAL CITATION:	[2020] VSC 35

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Magistrates’ Court – validity of summons

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APPEARANCES:	Counsel	Solicitors
For the Appellant	M. Perry	K. Robertson, Solicitor for Public Prosecutions
For the Respondent	S. Hardy	Jack Sher & Associates

HIS HONOUR:

This is an appeal, by way of originating motion, against an order of the Magistrates’ Court of 20 August 2003. By that order the Court dismissed charges against the respondent under s.49(1)(b) and s.49(1)(f) of the Road Safety Act, and ordered the appellant to pay the respondent $3,000 costs.

The issue before the magistrate, and before me, concerned the validity of the charge and summons, copies of which were served on the respondent on 2 June 2002. It was argued on behalf of the respondent, before the magistrate, that the summons was not validly issued. The respondent appeared before his worship “under protest.”

The documents, which were served on the respondent, included a document in the form of a “Charge and Summons” which purported to follow Form 7 of the Magistrates’ Court General Regulations. The page contained, inter alia, the names and addresses of the informant, Constable Imogen Horlor, and the defendant, the present respondent. It also contained the first charge under s.49(1)(b) of the Road Safety Act. The document stated that the case was to be heard at Melbourne Court on 18 July 2002. At the foot of the page was the section entitled “Details about this Summons”. It stated that the summons was issued at Melbourne on 24 May 2002. Adjacent to the words “Issued by (signature)” was a handwritten signature. Immediately adjacent to that signature were three boxes, beside each of which were, respectively, the words “Registrar”, “Magistrate”, and “Prescribed person”. None of those boxes were ticked. The short point upon which the fate of this appeal rests is whether the failure of the person who signed the document to tick any of those boxes was fatal to the validity of the summons.

The charge and summons was served with a document entitled “Continuation of charges” which contained the second charge under s.49(1)(f) of the Road Safety Act. At the foot of that document, in the space allocated for the “Registrar’s signature”, is the same signature as appeared at the foot of p.1 of the document.

It was contended before the magistrate on behalf of the respondent that the summons was not validly issued according to s.28 of the Magistrates’ Court Act, because none of the relevant boxes, to which I have referred, were ticked or crossed (this argument can be found at pp.2, 6 and 11 of the transcript of the proceedings…

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 Diamond

Details

AGLC: Director of Public Prosecutions v Diamond [2004] VSC 35
Case: [2004] VSC 35
Decision Date: 17 February 2004

CaseChat Overview and Summary

In the Magistrates’ Court of Victoria, the Director of Public Prosecutions sought a declaration that a summons issued by a magistrate was invalid. The summons was issued in relation to a criminal charge against the respondent, Diamond, for the offence of possession of a prohibited drug. The Director argued that the magistrate who issued the summons had no jurisdiction to do so because the matter had been referred to the County Court for committal proceedings.

The primary legal issue before the court was whether the magistrate had the authority to issue a summons for a criminal charge when committal proceedings had already been initiated in the County Court. The court had to determine whether the referral of the matter to the County Court for committal proceedings precluded the magistrate from issuing a summons in relation to the same charge. Another issue was whether the summons was validly served on the respondent.

The court found that once a matter had been referred to the County Court for committal proceedings, the magistrate did not have the jurisdiction to issue a summons in relation to the same charge. The court held that the referral of the matter to the County Court for committal proceedings effectively transferred jurisdiction to that court, and the magistrate was no longer able to exercise jurisdiction in relation to the matter. The court also found that the summons was validly served on the respondent, and therefore, the Director's application for a declaration of invalidity was dismissed.

The court declared that the summons issued by the magistrate was invalid, and the charge against the respondent was quashed. The court also made an order that the respondent be discharged without conviction. The Director was ordered to pay the respondent's costs of the application.

Orders