DPP v Hogg; DPP v Cyberman - [2006] VSC 257

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 7482 of 2005

DIRECTOR OF PUBLIC PROSECUTIONS (ON BEHALF OF DAVID JAMES KEALY)	Plaintiff
v
THE MAGISTRATES' COURT OF VICTORIA & PHILLIP JOHN HOGG	Defendants

AND

No. 7843 of 2005

DIRECTOR OF PUBLIC PROSECUTIONS (ON BEHALF OF ANDREW JOHN JONES)	Plaintiff
v
THE MAGISTRATES' COURT OF VICTORIA & ROBERT DEAN CYBERMAN	Defendants

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JUDGE:	WILLIAMS J
WHERE HELD:	Melbourne
DATE OF HEARING:	21 March 2006
DATE OF JUDGMENT:	11 July 2006
CASE MAY BE CITED AS:	DPP v Hogg; DPP v Cyberman
MEDIUM NEUTRAL CITATION:	[2006] VSC 257

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Administrative Law – Judicial review of magistrate’s refusal of application for reinstatement of charges struck out under s 30(3) Magistrates’ Court Act 1989 – Alternative procedure for the issue of summons under s 30(1) Magistrates’ Court Act 1989 - Whether proceeding commenced under s 30(2)(b) Magistrates’ Court Act 1989 when non-compliance with s 30(2)(a) Magistrates’ Court Act 1989 - Power of magistrate to reinstate charges struck out under s 30(3) Magistrates’ Court Act 1989

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr G. Silbert	Stephen Carisbrooke, Acting Solicitor for Public Prosecutions
For the Defendant Phillip John Hogg	Mr W.J. Walsh-Buckley	Armstrong Ross
For the Defendant Mr Cyberman	Mr Marquis	Robert Stary & Associates

HER HONOUR:

The applications

There are applications before the Court in each proceeding which can be conveniently dealt with together. The plaintiff in each proceeding seeks relief in the nature of certiorari and mandamus in relation to orders made on 24 June 2005 in the Magistrates’ Court at Ringwood dismissing applications for the reinstatement of charges against the second defendant. The charges had been struck out under s 30(3) of the Magistrates’ Court Act 1989 (“the Act”). The plaintiff asks the Court to quash the decision to make the orders and to remit the reinstatement application to the Magistrates’ Court for further hearing according to law.

The applications raise issues as to the effect of s 30 of the Act. Section 30 appears in Division 2 of Part 4 of the Act. Part 4 deals with criminal proceedings in the Magistrates’ Court and Division 2 with the procedure in those criminal proceedings. The Magistrates’ Court General Regulations 2000 (“the Regulations”) also relevantly supplement the provisions of the Act.

The Act

The Act provides as follows for the commencement of criminal proceedings in the Magistrates’ Court:

“26. How criminal proceeding commenced
(1)A criminal proceeding must be commenced by filing a charge –
(a) with a registrar; or
(b)if the defendant is arrested without a warrant and is released on bail, with a bail justice.

(1A)If a proceeding is commenced under sub-section (1)(a) by filing a charge with a registrar other than the appropriate registrar, the informant must file a copy of the charge with the appropriate registrar within 7 days after the commencement of the proceeding.
(2)A charge must be on a charge-sheet signed by the informant.

…
(4)A proceeding for…

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 Hogg; DPP v Cyberman

Details

AGLC: Director of Public Prosecutions v Hogg; Director of Public Prosecutions v Cyberman [2006] VSC 257
Case: [2006] VSC 257
Decision Date: 11 July 2006

CaseChat Overview and Summary

The Director of Public Prosecutions sought judicial review of a magistrate's decision to refuse to reinstate charges that had previously been struck out. The matter involved two separate cases, DPP v Hogg and DPP v Cyberman, where the magistrate had dismissed applications for the reinstatement of charges under section 30(3) of the Magistrates’ Court Act 1989 (Vic). The legal issues at hand centred on the interpretation of sections 30(1), 30(2)(a), 30(2)(b), and 30(3) of the Act, specifically whether the magistrate had the power to reinstate charges after they had been struck out and if the procedure outlined in section 30(2)(a) was a mandatory prerequisite for the commencement of proceedings under section 30(2)(b).

The court found that the magistrate had the discretion to reinstate charges that had been struck out, provided that certain conditions were met. It was held that section 30(2)(a) did not impose a mandatory prerequisite for the commencement of proceedings under section 30(2)(b). The court also noted that section 30(1) provided an alternative procedure for the issue of summons, which was not subject to the requirements of section 30(2). The magistrate's decision to refuse to reinstate the charges was quashed, and the matter was remitted to the magistrate for reconsideration.

The court held that the magistrate had the discretion to reinstate charges that had been struck out, provided that certain conditions were met, and that the procedure outlined in section 30(2)(a) was not a mandatory prerequisite for the commencement of proceedings under section 30(2)(b). The magistrate's decision to refuse to reinstate the charges was quashed, and the matter was remitted to the magistrate for reconsideration. The Director of Public Prosecutions was granted leave to appeal to the Court of Appeal.

Orders