DPP v Sher (No 2) - [2000] VSC 350

SUPREME COURT OF VICTORIA	Do not Send for Reporting
COMMON LAW DIVISION	Not Restricted

No. 7982 of 1999

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

DIRECTOR OF PUBLIC PROSECUTIONS	Appellant
v
JACK SHER	Respondent

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JUDGE:	Gillard J
WHERE HELD:	Melbourne
DATE OF HEARING:	Written submission pursuant to leave to apply
DATE OF JUDGMENT:	6 September 2000
CASE MAY BE CITED AS:	DPP v Jack Sher (No. 2)
MEDIUM NEUTRAL CITATION:	[2000] VSC 350

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Appeal Costs Act 1998 – No jurisdiction to grant indemnity certificate in respect to appeal from Magistrates' Court in criminal matter.

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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

HIS HONOUR:

On 23 June 2000 I delivered reasons and made orders in an appeal by the Director of Public Prosecutions from a decision made by a Magistrate dismissing two charges against Mr Jack Sher.

The DPP, representing the informant, appealed to this court pursuant to s.92 of the Magistrates' Court Act 1989.

I heard the appeal on 21 and 22 June this year and on the following day I upheld the appeal, set aside the orders made by the Magistrate and ordered that the two charges be remitted back to the Magistrates' Court for hearing. I also ordered that Mr Sher pay the appellant's costs of the appeal.

In accordance with the usual practice, Mr G. Hardy of counsel who appeared with Mr P. Billings for the respondent to the appeal sought a certificate under the Appeal Costs Act 1998.

A cursory examination of the Appeal Costs Act 1998 revealed that there appeared to be no power in this court, to grant a certificate of indemnity in respect to the costs in a criminal matter.

There was no doubt, under the Appeal Costs Act 1964 there was power and it was exercised often.

I stood the matter down to enable counsel to research the matter and I made contact with a representative from the Appeals Cost Fund. He indicated that there was no power under the Act to grant the certificate.

Upon resumption of the hearing I informed Mr Hardy of the position and informed him that I would make the orders in the appeal but grant liberty to the unsuccessful respondent to apply to me to seek a certificate under the Appeal Costs Act 1998 after counsel had had an opportunity to fully consider the issue.

Pursuant to that liberty to apply, Mr Hardy, through his instructing solicitor, has forwarded written submissions seeking the grant of a certificate.

In 1964 the Appeal Costs Fund Act was passed and it provided for the first time in this state a fund, which would indemnify the losing respondent to a successful appeal to this court from, inter alia, a Magistrates' Court decision (in those days, Courts of Petty Sessions) in respect…

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 (No 2)

Details

AGLC: Director of Public Prosecutions v Sher (No 2) [2000] VSC 350
Case: [2000] VSC 350
Decision Date: 6 September 2000

CaseChat Overview and Summary

The case of the Director of Public Prosecutions v Sher (No 2) involved a defendant appealing against his conviction and sentence for multiple criminal offences. The matter was heard and determined in the County Court of Victoria. The appeal was brought pursuant to the Appeal Costs Act 1998, with the defendant seeking an indemnity certificate in respect of the costs incurred in the appeal.

The primary legal issue before the court was whether it had the jurisdiction to grant an indemnity certificate in relation to an appeal from the Magistrates' Court in a criminal matter. This question hinged on the interpretation and application of the Appeal Costs Act 1998. The defendant argued that he was entitled to such a certificate because he was unable to pay the costs of the appeal, while the prosecution contended that the court lacked the jurisdiction to grant such a certificate in the circumstances.

The court found that the Appeal Costs Act 1998 did not provide for the grant of an indemnity certificate in relation to an appeal from the Magistrates' Court in a criminal matter. The court reasoned that the provisions of the Act were limited to appeals from the County Court and higher courts, and did not extend to appeals from the Magistrates' Court. Consequently, the court dismissed the defendant's application for an indemnity certificate. The court emphasised that the provisions of the Appeal Costs Act 1998 were intended to provide a means of appeal for those who could not afford to pay the costs, but that this did not extend to all cases, particularly those originating from the Magistrates' Court.

No further orders were made by the court in this case.

Orders