DPP v Sher - [2000] VSC 268

SUPREME COURT OF VICTORIA
COMMON LAW DIVISION	Not Restricted

No. 7982 of 1999

IN THE MATTER OF an Appeal on a Question of Law pursuant to Section 92 Magistrates Court Act 1989

DIRECTOR OF PUBLIC PROSECUTIONS (on behalf of Darren Norman van Veen)	Appellant
v
JACK SHER	Respondent

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JUDGE:	Gillard J
WHERE HELD:	Melbourne
DATE OF HEARING:	21 and 22 June 2000
DATE OF JUDGMENT:	23 June 2000
CASE MAY BE CITED AS:	DPP v Sher
MEDIUM NEUTRAL CITATION:	[2000] VSC 268

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Summary offences - Magistrates' Court – s.30(2)(a) of Magistrates' Court Act 1989 – filing original summons – not first strike but signed as original – compliance with provision – proof that informant a prescribed person to issue summons – drawing inference – presumption of regularity

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mrs C. Quin	Peter Wood, Solicitor for Public Prosecutions
For the Respondent	Mr G. Hardy and Mr P. Billings	Agricola Wunderlich & Associates

TABLE OF CONTENTS

PARTIES.......................................................................................................................................................................................... 1

PROCEEDING BELOW................................................................................................................................................................ 1

THE MAGISTRATE WAS WRONG IN DISMISSING THE CHARGES. ONCE HE CAME TO THE VIEW THAT THE "ORIGINAL SUMMONS" WAS NOT FILED AS REQUIRED BY S.30(2)(A) HE WAS OBLIGED TO STRIKE OUT THE CHARGES, NOT DISMISS THEM – SEE S.30(3).................................................................................................................................................................................... 3

APPEAL........................................................................................................................................................................................... 3

RESPONDENT'S SUMMONS..................................................................................................................................................... 4

COMMENCEMENT OF CRIMINAL PROCEEDING AND ISSUE OF SUMMONS........................................................ 10

MAGISTRATE'S REASONS..................................................................................................................................................... 13

DPP V EMADEN PTY LTD........................................................................................................................................................ 15

ORIGINAL SUMMONS.............................................................................................................................................................. 16

ALTERNATIVE CONTENTION............................................................................................................................................... 20

DEFENDANT'S SUMMONS...................................................................................................................................................... 25

CONCLUSION............................................................................................................................................................................. 26

HIS HONOUR:

I have before me an appeal pursuant to s.92 of the Magistrates' Court Act 1989 ("the Act") against two orders made by the Magistrates' Court sitting at Ringwood, dismissing two charges brought by a member of the police force against Mr Jack Sher. In addition I have a summons issued on behalf of Mr Sher seeking orders in respect to the appeal.

Parties

The appellant, the Director of Public Prosecutions, brings this appeal on behalf of a member of the police force, Senior Constable Darren van Veen ("informant") who is aggrieved by the orders made by the magistrate. (See s.92(2) of the Act.

Mr Jack Sher, the respondent to the appeal, is a solicitor and was charged with a number of road traffic offences.

Proceeding below

Senior Constable van Veen filed four charges against Mr Sher on 8 November 1998.

The charges were that –

(i) Mr Sher at Box Hill on 7 November 1998 was found driving a motor vehicle and being required to undergo a preliminary breath test by a prescribed device did refuse to undergo such test;

(ii) Mr Sher at Box Hill on 7 November 1998 did drive a motor vehicle while under the influence of alcohol to such an extent as to be incapable of having proper control of the motor vehicle;

(iii) Mr Sher at Box Hill on 7 November 1998 did leave a vehicle in a "no standing" area on a highway, namely, Station Street;

(iv) Mr Sher at Box Hill on 7 November 1998 did use on a…

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 Sher

Details

AGLC: Director of Public Prosecutions v Sher [2000] VSC 268
Case: [2000] VSC 268
Decision Date: 23 June 2000

CaseChat Overview and Summary

The matter before the court was a prosecution against the defendant, Sher, for a summary offence. The dispute centred on the procedure followed for filing the summons against Sher, specifically whether the original summons was correctly signed and filed in accordance with section 30(2)(a) of the Magistrates' Court Act 1989. The case was heard in the Magistrates' Court, and the defendant challenged the validity of the summons on the grounds that it was not signed by a prescribed person who is authorised to issue summonses.

The court needed to determine whether the summons complied with the statutory requirements outlined in section 30(2)(a) of the Magistrates' Court Act 1989. This included assessing whether the document was signed by a person who was authorised to issue a summons and whether the original summons was filed as required by law. Additionally, the court had to consider whether the presumption of regularity applied and whether the informant was a prescribed person capable of issuing the summons.

The court examined the procedure followed in filing the summons and noted that while the summons was not the first strike, it was signed as the original. The court found that the summons was in compliance with the statutory requirements as it was signed by an authorised person. The court also noted that there was a presumption of regularity in the proceedings, which the defendant had not rebutted. Consequently, the summons was valid, and the court rejected the defendant's challenge.

In conclusion, the court determined that the summons against Sher was properly filed and signed by an authorised person. The presumption of regularity applied, and the defendant failed to rebut it. As a result, the summons was valid, and the defendant's challenge was unsuccessful.

Orders