Exner v Howe - [2023] VSC 603

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

JUDICIAL REVIEW AND APPEALS LIST

S ECI 2022 03497

BYRON EXNER	Plaintiff
v
PAUL HOWE	First Defendant
and
COUNTY COURT OF VICTORIA	Second Defendant

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JUDGE:	KEOGH J
WHERE HELD:	Melbourne
DATE OF HEARING:	6 October 2023
DATE OF JUDGMENT:	12 October 2023
CASE MAY BE CITED AS:	Exner v Howe
MEDIUM NEUTRAL CITATION:	[2023] VSC 603

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ADMINISTRATIVE LAW — Judicial Review — Plaintiff convicted in County Court of entering premises in contravention of s 9(1)(e) of Summary Offences Act 1966 (Vic) — Whether conviction reasonably open — Whether irrelevant matters considered — No error — Proceeding dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Appeared in person
For the First Defendant	S Clancy	Office of Public Prosecutions
For the Second Defendant	No appearance

HIS HONOUR:

The plaintiff, Byron Exner, was in an intimate relationship with Donna van Doren from 2009 to 2017. There are two children of the relationship, who are now aged 13 and 8 years. The relationship ended acrimoniously. At various times, including in late 2017, van Doren obtained family violence intervention orders (‘FVIO’) against Exner.

Exner was charged with two offences contrary to s 9(1)(e) of the Summary Offences Act 1966 (Vic) (‘Summary Offences Act’) on the basis that in late 2019 he entered van Doren’s premises without authorisation or excuse. In April 2021 the Magistrates’ Court of Victoria sitting at Ballarat found him guilty of those offences and sentenced him to a period of imprisonment. Judge Riddell heard Exner’s appeal against his conviction and sentence in the County Court of Victoria in July 2022. On 15 July 2022 the trial judge found Exner guilty of the two charges, and re-sentenced him to a lesser period of imprisonment. That sentence did not result in a further period of incarceration because of time already spent on remand.

Exner seeks to review the decision of the trial judge on the following grounds:

The judgment was made without proper examination and consideration of the evidence presented to the court, As a result a ruling and judgement was made based on false and misleading evidence given under oath by the Complainant. I seek a review to determine a finding of not guilty or rehearing.

Exner argued that the trial judge should not have admitted and relied on certain evidence, and that the conclusion of guilt reached by the trial judge was not open to her, and was thus unreasonable. Exner made the following further submissions:

(a) critical evidence relied on by the prosecution was false;

(b) investigation by the informant and prosecution of the charges was inadequate in important respects; and

(c) his lawyers and counsel who appeared on his behalf at the County Court appeal did not follow his instructions and were incompetent.

Exner did not articulate how these complaints related to an arguable ground for judicial review.
Procedural history

On 3 March 2020, Exner was charged by police with two offences under…

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 Exner v Howe

Details

AGLC: Exner v Howe [2023] VSC 603
Case: [2023] VSC 603
Decision Date: 12 October 2023

CaseChat Overview and Summary

The case of Exner v Howe involved the plaintiff challenging the conviction he received in the County Court of Victoria for entering premises in contravention of section 9(1)(e) of the Summary Offences Act 1966 (Vic). The plaintiff argued that the conviction was not reasonably open, and that the magistrate had considered irrelevant matters. The matter was heard in the Supreme Court of Victoria, which was asked to determine the validity of the conviction through the lens of judicial review.

The court was required to consider whether the conviction was reasonably open on the evidence presented and whether the magistrate had taken into account any irrelevant matters. In determining the reasonableness of the conviction, the court examined the evidence and the legal principles applicable to the offence. The court also considered whether the magistrate had considered any irrelevant factors that may have influenced the decision. The key issue was whether the magistrate had made an error in the application of the law that would render the conviction invalid.

In its decision, the court found that the conviction was reasonably open on the evidence presented and that no irrelevant matters had been considered by the magistrate. The court concluded that the magistrate had correctly applied the law and that there was no error in the proceedings. Consequently, the court dismissed the plaintiff's application for judicial review. The court found that the evidence supported the conviction and that the magistrate's decision was not influenced by any irrelevant considerations. As a result, the plaintiff's challenge to the conviction was unsuccessful.

The Supreme Court of Victoria dismissed the plaintiff's application for judicial review and affirmed the conviction in the County Court. The court held that the conviction was reasonably open on the evidence and that no error was made in the proceedings. The decision underscores the importance of ensuring that convictions are based on proper evidence and legal principles, while also highlighting the limited scope for judicial review in such matters.

Orders