Duncan v Demir - [2009] VSC 37

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 7622 of 2008

SCOTT DUNCAN	Appellant
v
OSMAN DEMIR	Respondent

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JUDGE:	Kyrou J
WHERE HELD:	Melbourne
DATE OF HEARING:	2-3 February 2009
DATE OF JUDGMENT:	13 February 2009
CASE MAY BE CITED AS:	Duncan v Demir
MEDIUM NEUTRAL CITATION:	[2009] VSC 37

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Appeal from a decision of a Magistrate under Magistrates’ Court Act 1989 (Vic), s 92(1) – Road Safety Act 1986 (Vic), s 77(2) – authority to prosecute for offences under that Act – whether common law right of public to prosecute for a public offence abrogated – whether Magistrates’ Court Act, s 30(1) provides authority to prosecute – presumption of regularity – procedure for objecting to authority to prosecute – discretion to permit prosecution to reopen its case.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Ms K Hanscombe SC with Ms F McKenzie	Legal Division, Department of Transport
For the Respondent	Mr M Kowalski	Thexton Lawyers

HIS HONOUR:

Introduction and summary

This is an appeal under s 92(1) of the Magistrates’ Court Act 1989 (Vic) (“MC Act”) by the appellant, Scott Duncan, from a final decision of the Magistrates’ Court at Melbourne to dismiss a charge brought against the respondent, Osman Demir, by Mr Duncan as informant. The charge alleged that on 9 May 2007, Mr Demir’s vehicle travelled at a speed of 51 kilometres per hour in a 40 kilometres per hour school safety zone in Flemington Road, North Melbourne. Mr Demir’s vehicle is a luxury chauffeur-driven hire car.

The Magistrate dismissed the charge after the close of the prosecution case on the basis that the prosecution failed to present evidence to establish that Mr Duncan was authorised to bring the prosecution under s 77 of the Road Safety Act 1986 (Vic) (“RS Act”).

In the appeal, Mr Duncan claims that the Magistrate’s decision is vitiated by several errors of law, including failure to apply the presumption of regularity, failure to consider alternative sources of Mr Duncan’s authority to prosecute and precluding the exercise of the Magistrate’s discretion to permit the prosecution to reopen its case to establish Mr Duncan’s authority to prosecute.

It was common ground before me that the only provision of s 77 of the RS Act that could possibly apply to Mr Duncan is s 77(2)(c) which provides that “any employee in the Department of Infrastructure who is authorised in writing to do so either generally or in any particular case by the Secretary to the Department of Infrastructure” may prosecute for any offence against the RS Act or the regulations made under that Act.

For the reasons set out in this judgment, I have decided that the Magistrate erred in law in allowing Mr Demir to object to Mr Duncan’s alleged lack of authority to bring the prosecution after the close of the prosecution case, without giving Mr Duncan the opportunity to apply to reopen his case to establish his authority to…

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 Duncan v Demir

Details

AGLC: Duncan v Demir [2009] VSC 37
Case: [2009] VSC 37
Decision Date: 13 February 2009

CaseChat Overview and Summary

The appeal concerns a decision made by a Magistrate under the Magistrates’ Court Act 1989 (Vic), s 92(1), pertaining to a charge laid under the Road Safety Act 1986 (Vic), s 77(2). The appellant, Duncan, challenges the validity of the prosecution, arguing that the respondent, Demir, lacked the necessary authority to prosecute him for the alleged traffic offence. The case was heard and determined in the Magistrates’ Court of Victoria, and the appellant subsequently appealed to a higher court.

The central legal issue addressed by the court was whether the common law right of the public to prosecute for public offences had been abrogated by statute, specifically under the Magistrates’ Court Act 1989 (Vic), s 30(1). The appellant contended that the presumption of regularity did not apply, and the prosecution needed to demonstrate that the respondent had the authority to prosecute. Furthermore, the appellant argued that the procedure for objecting to the authority to prosecute was not properly followed, and the discretion to permit the prosecution to reopen its case was misapplied.

The court examined the relevant statutes and found that the common law right to prosecute had been effectively abrogated by the statutory provisions. It was held that the Magistrates’ Court Act 1989 (Vic), s 30(1) provided sufficient authority for the respondent to prosecute the appellant. The court also upheld the presumption of regularity, which presumed that the respondent had the necessary authority to prosecute unless proven otherwise. The court found that the respondent had followed the correct procedure in objecting to the authority to prosecute and exercised its discretion appropriately in permitting the prosecution to reopen its case. The appeal was dismissed, and the decision of the lower court was upheld.

The final orders of the court confirmed the dismissal of the appeal and the validity of the prosecution. The appellant was required to pay the costs of the appeal.

Orders