Flaherty v DPP
[2003] VSC 234
•26 June 2003
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
No. 8767 of 2002
| RAYMOND FLAHERTY | Plaintiff |
| v | |
| DIRECTOR OF PUBLIC PROSECUTIONS | First Defendant |
| - and - | |
| COUNTY COURT OF VICTORIA | Second Defendant |
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JUDGE: | OSBORN J | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 18 JUNE 2003 | |
DATE OF JUDGMENT: | 26 JUNE 2003 | |
CASE MAY BE CITED AS: | FLAHERTY v DPP | |
MEDIUM NEUTRAL CITATION: | [2003] VSC 234 | |
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Sentence – Judicial review – Certiorari – Error of law on the face of the record – Crown appeal to County Court against Magistrates' Court sentence – substantial increase in sentence where County Court Judge did not refer to concept of "double jeopardy" in sentencing.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr K. Armstrong | Victoria Legal Aid |
| For the First Defendant | Mr J.D. McArdle QC | Office of Public Prosecutions |
HIS HONOUR:
By originating motion issued on 12 December 2002 the plaintiff in these proceedings seeks orders that:
(a)the time be extended for the commencement of the proceeding pursuant to r.56.02 of the Rules of the Supreme Court; and
(b)the decisions on sentence made by a Judge of the County Court on 18 April 2002 in an appeal pursuant to s.84 of the Magistrates Court Act 1989 be quashed.
On 21 February 2002 the plaintiff pleaded guilty before a Magistrates' Court to four charges of burglary; three charges of theft; four charges of loitering with intent; one charge of handling stolen goods; one charge of attempted burglary; one charge of attempted theft and three charges of driving whilst disqualified.[1] The plaintiff was convicted on each charge and sentenced to a total aggregate sentence of 12 months' imprisonment. It was further ordered that six months of the sentence be suspended.
[1]The commission of these offences also involved a breach of a suspended sentence of three months imposed on 24 October at the Melbourne Magistrates' Court.
On 14 March 2002 the Director of Public Prosecutions ("DPP") filed a notice of appeal pursuant to s.84 with respect to the sentences imposed by the Magistrates' Court.
On 18 April 2002 the appeal came before the County Court. The appeal Judge allowed the appeal and sentenced the plaintiff on the charges to a total effective sentence of four years and one month imprisonment. He further ordered that the prisoner serve a minimum of three years before becoming eligible for parole.
No right of appeal lies from the decision of a County Court Judge hearing an appeal from the Magistrates' Court pursuant to s.84 of the Magistrates' Court Act, except where the penalty is increased to imprisonment from a penalty which was non-custodial.[2]
[2]Magistrates' Court Act 1989 s.91
The plaintiff now seeks judicial review of the decisions of the County Court. The central contention advanced on his behalf is that the appeal Judge did not have regard to the principle of "double jeopardy" which in circumstances such as the present should be understood to refer to the fact of the prisoner twice standing for sentence. When a member of the Court of Criminal Appeal (NSW) Kirby P articulated this concept as follows:
"At the heart of the suggested difference between prisoner and Crown Appeals is the notion that, in a Crown Appeal, a prisoner suffers a species of 'double jeopardy' by reason of having twice to face the prospect of sentencing and possible loss of liberty. This is the way it was ultimately put in Tait (1979) 46 FLR 386 at 388-390, drawing on the remarks of Isaacs J in Whittaker (1928) 41 CLR 230 at 248. Of course, what is involved is not a true 'double jeopardy' (for the reasons analogous to those given by Cockburn CJ in Charlesworth (1861) 9 Cox CC 44 at 53); see also D O'Connor 'Criminal Appeals in Australia before 1912' (1983) 7 Crim LJ 262 at 272. If the sentence was 'wrong' in the first place, it is upon the appeal that the only 'true' sentence according to law is passed. But in a practical sense, there is a species of double jeopardy. The prisoner's liberty, pocket and reputation are put in jeopardy both before the sentencing judge and before the appellate court: cf Wilton (1981) 28 SASR 362 at 367; 4 A Crim R 5 at 10. In addition, the prisoner suffers the anxiety and stress caused by the situation of uncertainty arising from the delay in resolving his or her position: cf Carngham (1978) 140 CLR 487."[3]
[3]Hayes (1987) 29 A Crim R 452 at 469
The jurisdiction of this Court with respect to judicial review for an alleged error of law is subject to the procedure set out in Order 56 of the Rules of the Supreme Court. Order 56 provides that subject to any Act the jurisdiction of the Court to grant relief in the nature of certiorari (and other prerogative writs) should be exercised only by way of judgment or order and in a proceeding commenced in accordance with Order 56.
Rule 56.02 provides that a proceeding under Order 56 shall be commenced within 60 days after the date when grounds for the grant of relief first arose. It further provides the Court shall not extend this time period "except in special circumstances."
As I stated in Mann v Medical Practitioners Board of Victoria[4] the rule governing extension of time is couched in negative terms and in effect casts the onus on the applicant to positively satisfy the Court that special circumstances exist. It is the clear intent of the rule to recognise that administrative decisions and the decisions of inferior courts and tribunals must at some point be regarded as having reached practical finality. Nevertheless the concept of "special circumstances" is a deliberately flexible one which should not be fettered by prescriptive preconceptions.
[4][2002] VSC 256
In the present case I am satisfied special circumstances arise.
(a) The case involves the liberty of the subject.
(b)There is a credible explanation as to the reason for non-compliance with the rule.
(c)There are arguable grounds for review.
(d)The plaintiff had no right of appeal or other alternative remedy with respect to the outcome of the appeal instituted by the DPP.
(e)No procedural or other prejudice has been suffered by the DPP as a result of the delay in instituting these proceedings.
The above matters require no elaboration save with respect to the explanation offered by the plaintiff as to delay. Mr Armstrong tendered to me a useful chronology. In summary, on 29 April 2002 the plaintiff, while in custody in Gippsland, requested a solicitor to lodge an appeal against the sentences imposed upon him on 18 April 2002. On the following day a notice of appeal was filed with the Court of Appeal and the plaintiff's solicitor initiated other steps to enable the prosecution of the appeal. On 27 June 2002 the plaintiff's solicitor was advised by the Registrar of the Court of Appeal that the appeal was incompetent. Thereafter the plaintiff sought a grant of legal aid to facilitate review proceedings. Regrettably such a grant was refused, reconsidered, refused, internally appealed, and not ultimately granted until 7 November 2002. Counsel was then briefed to draw the necessary papers for this proceeding and after such documents were drawn some further administrative mishaps occurred in filing the originating motion. In the event the proceeding was instituted on 23 December 2002 being less than 60 days after legal aid was approved to facilitate it. I am satisfied the delays which have occurred were not caused by any personal fault of the plaintiff. In addition, the plaintiff has been at a material disadvantage in seeking to expedite these proceedings by reason of the imprisonment which forms the subject matter of his application. Furthermore, while a party must generally accept responsibility for the delay and default of that party's legal advisers, the significance of any such delay must be evaluated in all the circumstances of the case. In the present case I am satisfied that when the explanation given is taken in conjunction with the other matters I have identified, it is proper to conclude that this is a case of special circumstances.
Error of Law
In Craig v South Australia[5] the High Court stated:
"Where available, certiorari is a process by which a superior court, in the exercise of original jurisdiction, supervises the acts of an inferior court or other tribunal. It is not an appellate procedure enabling either a general review of the order or decision of the inferior court or tribunal or a substitution of the order or decision which the superior court thinks should have been made. Where the writ runs, it merely enables the quashing of the impugned order or decision upon one or more of a number of distinct established grounds, most importantly, jurisdictional error, failure to observe some applicable requirement of procedural fairness, fraud and 'error of law on the face of the record'. Where the writ is sought on the ground of jurisdictional error, breach of procedural fairness or fraud, the superior court entertaining an application for certiorari can, subject to applicable procedural and evidentiary rules, take account of any relevant material placed before it. In contrast, where relief is sought on the ground of error of law on the face of the record, the superior court is restricted to the 'record' of the inferior court or tribunal and the writ will enable the quashing of the impugned order or decision only on the ground that it is affected by some error of law which is disclosed by that record."[6]
[Citations omitted]
[5](1995) 184 CLR 163
[6]Ibid at 175-6
The High Court has more recently had occasion to further consider the ambit of relief in the nature of certiorari in the case of Re McBain; Ex parte Catholic Bishops Conference[7]. Nothing said in the judgments given in that case, however, detracts from the fundamental principles stated in the passage quoted above from Craig's case. Indeed, Hayne J, after referring to the above passage, said:
'This description of when the writ of certiorari will be available is a description apt to the supervisory role of a State Supreme Court."[8]
[7](2002) 209 CLR 372
[8]Ibid at 463 (para.254)
There is no doubt that a sentencing decision of the County Court on an appeal pursuant to s.84 of the Magistrates Court Act is potentially amenable to the supervisory jurisdiction of the Supreme Court by way of relief in the nature of certiorari.[9]
[9]Brand v Parson [1994] 1 VR 252
In Victoria the "record" of an inferior court includes the reasons stated by it for its decision. Section 10 of the Administrative Law Act 1978 provides:
"Any statement by a tribunal or inferior court whether made orally or in writing, and whether or not made pursuant to a request or order under s.8, of its reasons for a decision shall be taken to form part of the decision and accordingly to be incorporated in the record."
It was not contended before me that the reasons for sentence given by the sentencing Judge which were transcribed should not be regarded as part of the record.[10] This approach accords with the decisions in Hansford v Judge Neesham[11]; Flynn v DPP & Anor[12]; and Kuek v Wellens & Anor[13].
[10]cf Coleman v DPP (2002) 132 A Crim R 255 where no reasons were available.
[11]Hansford v Judge Neesham (1994) 7 VAR 172 affirmed at [1995] 2 VR 233
[12]Flynn v DPP & Anor [1998] 1 VR 322 at 366
[13][2000] VSC 326 and on appeal [2002] VSCA 31
In Craig's case the High Court held that statements of reasons were not to be regarded as part of the record at common law and commented at p.181:
"More importantly, the approach that the transcript of proceedings and the reasons for decision constitute part of 'the record' would, if accepted, go a long way towards transforming certiorari into a discretionary general appeal for error of law upon which the transcript of proceedings and the reasons for decision could be scoured and analysed in a search for some internal error. It is far from clear that policy considerations favour such an increase in the availability of certiorari to correct non-jurisdictional error of law."
It follows that the statutory inclusion of reasons stated for a decision within the "record" opens the door to some extent to "a discretionary general appeal for error of law". Nevertheless it does not of course enable reference to be made to the evidence before the decision maker as would normally occur on such an appeal. It goes only part of the "long way" referred to in Craig's case.
In the present case the "record" included the following:
(a) the initial charges against the plaintiff;
(b) the certified extracts evidencing the decisions of the Magistrates' Court;
(c) the notice of appeal to the County Court;
(d) the sentencing remarks of the appeal Judge;
(e)the Notice to Certain Officers evidencing the decisions of the County Court upon the appeals.
It is also arguable that the sentencing remarks of the appeal Judge incorporated the list of prior convictions tendered in evidence before him. In the event, however, nothing turns on this point as Mr Armstrong conceded on behalf of the plaintiff that having regard to all the circumstances of the case, and the prior convictions of the plaintiff it could not be said the sentences imposed were manifestly excessive if they had been imposed at first instance.
The plaintiff's application turns on the proposition that the appeal Judge should have had regard to the principle of double jeopardy as relevant to the circumstances of the charges before him and that it should be concluded from his sentencing remarks that he did not.
The Principle of Double Jeopardy
In R v Clarke Charles JA, with whom Winneke P and Hayne JA agreed, stated a series of principles applicable to appeals by the Crown. The fourth such principle was:
"4.When, in response to a Crown Appeal, the court decides to re-sentence an offender, it ordinarily gives recognition to the element of double jeopardy involved (in twice standing for sentence) by imposing a sentence that is somewhat less than the sentence it considers should have been imposed at first instance."[14]
Charles JA stated that these principles are "unquestionably part of the law of this State".[15] He referred to the leading authorities and I note that in Dinsdale v R[16], to which Mr McArdle QC referred me, Kirby J referred to the decision in Clarke with approval.[17]
[14][1996] 2 VR 520 at 522
[15]Ibid at 523
[16](1999) 202 CLR 321
[17]Ibid at 341
There is no Victorian authority bearing directly on the question of whether the relevant principle of "double jeopardy" should be applied to appeals from a Magistrate by way of rehearing in the County Court. It might be thought, however, that particularly where an accused pleads guilty the undeniable effect of a Crown appeal is that he "stands twice for sentence", indeed both sentences are 'true" sentences at law. Furthermore, in this case the DPP could have chosen to have the matter dealt with at first instance in the County Court.
In New South Wales the Court of Criminal Appeal has held that the principle does apply to a District Court Judge hearing a prosecution appeal against sentence in the nature of an appeal by way of rehearing. In Comptroller-General of Customs v D'Aquino Bros Pty Ltd[18] the Court had before it an appeal with respect to sentence imposed in relation to a customs and excise prosecution. Hunt CJ stated:
"It was submitted by the Comptroller-General that an appeal to the District Court against the dismissal of a customs or excise prosecution by a magistrate pursuant to s19B of the Crimes Act (broadly, the equivalent of s556A of the Crimes Act 1900) – in other words, an ordinary appeal from the Local Court pursuant to Pt 4 of Div 5 of the Justices Act – should not be regarded as an appeal against sentence. Reliance is placed upon what Street CJ said on behalf of this Court in Collector of Customs v Tallerman & Co Pty Ltd, that, where a charge has been dismissed pursuant to s19B, it is a substantive dismissal, and the appeal pursuant to s248 of the Customs Act could not properly be regarded 'as a mere appeal against sentence'. This Court was dealing with the question whether a 'mere appeal against sentence' fell within the terms of s248. It was held that an appeal against such a dismissal did fall within s248. With all due respect to the present submission, that decision has nothing to do with the question whether the judge who hears the appeal should take the element of double jeopardy into account when assessing the appropriate sentence to be proposed. In my view, the judge must take it into account in such a case.
When Parliament provided by s248 of the Customs Act and s137 of the Excise Act that the provisions of the law relating to summary proceedings in force in the State where the proceedings are instituted shall apply to all customs and excise prosecutions before a court of summary jurisdiction in that State, again they took the Local Court and the nature of the appellate procedure in the District Court as they found them. The approach which is taken in such appeals is therefore applicable to customs and excise prosecutions commenced in the Local Court.
Thus, although the District Court judge hearing a prosecution appeal against sentence pursuant to Div 4 of Pt 5 of the Justices Act must (as does the judge hearing such an appeal pursuant to Div 4A) exercise his or her own sentencing discretion, rather than review the sentence which was imposed below (as does this Court), when imposing such sentence as that judge thinks is proper in the circumstances of the particular case, the element of double jeopardy must be taken into account in assessing what that proper sentence should be. In my view, therefore, Judge Madgwick did not err in taking that element into account."[19] [Citations omitted]
[18](1996) 85 A Crim R 517
[19]Ibid at 540-541
In my opinion the "double jeopardy" principle stated by the Court of Appeal in Clarke's case which I have quoted above must be had regard to in appeals pursuant to s.84 of the Magistrates Court Act against sentence by the DPP.
The Application of the Principle
Before sentencing the plaintiff in the present case the appeal Judge first referred to the nature of the offences to which the plaintiff had pleaded guilty. He noted that the offences of dishonesty were carried out in a systematic way and the stolen goods were sold to fences and others. He referred to the victim impact statements filed by two educational institutions which had suffered from the plaintiff's depradations. He then observed as follows:
"You are a mature man of 35 years of age and seem to be well set in your ways. You present with a very long list of prior convictions going back to 1983, including many burglaries and thefts, as well as crimes of violence, motor car offences and drug offences.
Your mother tells me you have had a drug problem since you were 15 in one way or another and have spent a total of eight years in prison to date. She is still prepared to support you and she believes that your love for your 3 year old daughter, who now lives with her, will inspire you to mend your ways when you are released. Unfortunately, that love has not prevented you from offending so far.
I believe your prospects for rehabilitation are slender. I accept the remorse that is indicated in your early pleas of guilty.
All types of sentencing dispositions have been tried by the Magistrates who have dealt with you in the past without success. Obviously both specific and general deterrence must loom large in your case."
No reference is made to the principle of double jeopardy in these remarks. It does not, however, follow that it should necessarily be inferred the Court did not consider such principle. The proper test to be applied has been formulated in appeals on questions of law from Magistrates' Courts and is that stated by Sholl J in Yendall v Smith Mitchell & Co Ltd[20]; adopted by Adam J in McConkey v McConkey[21]. The test was restated by Sholl J in Harrison v Mansfield[22] after referring back to Yendall v Smith Mitchell & Co Ltd:
"The true principle … must be, not that everything relevant which a magistrate does not refer to is to be taken to have been overlooked, or on the other hand, that it is to be taken to have been considered, but that, if something which should have been considered is not referred to, and the nature of the decision suggests some error, which may have been due to that matter not having been considered as it should have been, or if the magistrate's observations indicate, on a comparison of what he said with what he did not say, that the matter in question has not been considered as it should have been, the appellate tribunal may properly draw such an inference, and the magistrate will have no cause to complain if it does so."[23]
[20][1953] VLR 369 at 379
[21][1960] VR 295 at 300
[22][1953] VLR 399
[23]Ibid at 404
This approach conforms with that adopted by appellate courts on Crown Appeals against sentence. In Clarke Charles JA said:
"A court of criminal appeal dealing with any appeal against sentence, including by a prisoner, is not a court hearing the matter anew, and is not entitled to substitute its own opinion for that of the sentencing judge merely because of considering the sentence inadequate or excessive. It may only interfere if there is manifest inadequacy or it is shown that the sentencing judge fell into material error of fact or law (R v Allpass (1993) 72 A Crim R 561 at 562-3)."[24]
In Hayes[25] Kirby P stated:
"In many Crown Appeals, judges in the Court of Criminal Appeal have been at pains to point out that, had they been sentencing the respondent themselves, they would have imposed a much heavier sentence than the trial judge did: see, for example, Young CJ in Morgan (1982) 7 A Crim R 146 at 147; Jacobs J in McKaye (1982) 30 SASR 312 at 317; 7 A Crim R 96 at 101 and Brooking J in Rohde (1985) 17 A Crim R 166 at 175; Crockett J at 177. None the less appellate judges have pointed out that the adoption of proper principle in disturbance of a discretionary decision requires restraint and this even where the sentence involved was 'lenient in the extreme': see, for example, Van den Berg [1984] WAR 162; 12 A Crim R 113.
Often cited in this connection are the principles collected by the Full Court of the Federal Court of Australia in Tait (1979) 46 FLR 386 at 388ff. There it was stressed, in language reminiscent of Jordan CJ in Geddes (1936) 36 SR (NSW) 554, that interference by the appellate court would be limited only to those cases where it was plain that the sentencing judge had acted according to a wrong principle or had misunderstood salient features of the evidence. Such misunderstanding or error could be shown by express language or by the result which was so excessive or inadequate that error was manifest: see also Hall (1980) 28 ALR 107 and Leach (1979) 1 A Crim R 320 at 323. But mere disagreement with the sentence imposed is insufficient to warrant disturbance on appeal, unless it be disagreement which results from such manifest error.
Adoption of this approach to appeals such as the present is appropriate simply to ensure that the action of a court of criminal appeal, in reviewing a Crown Appeal against sentence, conforms to the general principles which govern the review of discretionary decisions in our courts, whether in civil or criminal trials: see Cranssen (1936) 55 CLR 509 at 519; see also Barwick CJ in Griffiths (1977) 137 CLR 293 at 310, applied in Valentini (1880) 48 FLR 416 at 418; 2 A Crim R 170 at 172 and Davey (1980) 50 FLR 57 at 58; 2 A Crim R 254 at 255."[26]
[24][1996] 2 VR 520 at 522
[25](1987) 29 A Crim R 452
[26]Ibid at 468
In Pettingill[27] Cox J referred to the realities involved in giving reasons for sentence:
"The judge was obliged to explain the grounds upon which he imposed sentence, but that does not mean that everything had to be stated explicitly. His remarks are to be read in the light of the facts of the case and of counsels' submissions. They are to be interpreted with common sense and not on the assumption that an experienced sentencing judge may be supposed from his silence to have overlooked or misunderstood those submissions or to have neglected to apply the very well known provisions of the [legislation] in the proper manner. There is no set form of words, and if the judge makes himself clear in his reference to the facts and the law, it matters not that he happens to do so in some respects by implication rather than by spelling everything out expressly. Any invitation to introduce another obligatory ritual formula into our criminal procedure should be firmly resisted unless the grounds for it are quite compelling."
[27](1985) 21 A Crim R 130 at 133
In Munro v Brack & Anor[28] Beach J observed that there was no obligation on a County Court Judge dealing with an appeal from a Magistrate of the type there in issue (involving traffic offences) to give elaborate reasons for sentencing, "let alone incumbent upon him to state in those reasons that he has given consideration to the various matters he is required to by s.5(2) of the Sentencing Act."[29]
[28](2000) 112 A Crim R 398
[29]Ibid at 403
Nevertheless the law imposes an obligation to give reasons for sentence[30] and the failure to refer to a material matter in reasons must be assessed in the context of this obligation.[31] In R v Le Van Huu[32]Phillips CJ said:
"An important object of reasons for sentence is to show the cast of mind of the sentencing judge. They should disclose the train of thought involved in reaching the ultimate conclusion and reveal those matters upon which the judge is prepared (or is not prepared) to act."[33]
Smith AJA concurred and Ormiston JA, although dissenting as to the outcome of the appeal, observed of relevant factors:
"I would not ordinarily require more than that each factor should be recognised appropriately in the judge's remarks."[34]
[30]See eg R v O'Connor [1987] VR 496 at 501
[31]cf Kentucky Fried Chicken Pty Ltd v Gantidis (1978) 140 CLR 675 per Stephen J with whom Gibbs, Mason and Aicken JJ concurred at 682.
[32]Unreported 19 April 1999 [1999] VSCA 40
[33]Ibid p10
[34]Ibid p18
An example of a case in which an inference was drawn that the sentencing judge had not had regard to relevant matters is the decision of the Full Court in R v Gray[35] where McInerney and Crockett JJ, with whom Gillard J agreed, stated:
"All these factors were relevant to be considered by the Judge in the manner we have attempted to explain. However it is by no means clear that the Judge did so consider them. To make no mention in the course of his reasons for sentence of the pleas of guilty does not necessarily mean that the question was not considered and such weight (if any) given to the pleas as it was thought they deserved. But the passage set out above indicates that the Judge entertained doubt as to whether pleas of guilty could, when he was sentencing, be taken into account. Indeed he seems to have thought they could not. Certainly, if they could the circumstances in which the pleas could operate so as to induce clemency seem not to have been present to the mind of the Judge. Accordingly we consider that ground 4 has been made out and as a result the sentencing discretion of the learned Judge has miscarried."[36]
[35][1977] VR 225
[36]Ibid at 233
In the present case I am satisfied that the inference can be drawn that no regard or alternatively no proper regard was had to the principle of double jeopardy.
(a)The reasons carefully set out a series of other matters favourable to the offender and potentially justifying a reduction of penalty.
(b)Appeals by the DPP from the Magistrates' Court to the County Court against sentence cannot be regarded as routine matters.
(c)The question of double jeopardy was a matter of special relevance to the appeal before the Court.
(d)The applicable relevant principle cannot be regarded as so notorious that it could be said to "go without saying".
(e)The context in which no mention was made of the principle was one of a very substantial increase upon the penalties previously imposed by the Magistrates' Court.
It follows that I am satisfied on the balance of probabilities that the plaintiff has made out an error of law upon the face of the record. The learned sentencing Judge failed to have due regard to the principle of double jeopardy as applicable to prosecution appeals against sentence.
Vitiating Error
Not every error of law appearing on the face of the record will, however, lead to interference with the decision of the inferior court. In R v Industrial Appeals Court; Ex parte Henry Berry & Co (Australasia) Ltd[37] Hudson J stated:
"In order to succeed in its application for a writ of certiorari it was necessary for the prosecutor to establish error of law invalidating the order of the Industrial Appeals Court. Although it has, in my opinion, established error on one point, this is insufficient to invalidate the court's order …"[38]
[37][1955] VLR 156
[38]Ibid at 170
In Flynn v DPP[39] McDonald J, when considering whether relief in the nature of certiorari should be granted with respect to decisions made pursuant to s.83 of the Magistrates' Court Act 1989 in appeals against conviction and sentence, stated after a careful review of relevant authority:
"For this court to grant relief to quash an order of an inferior court, in the nature of certiorari if an error of law is demonstrated to exist on the face of the record, including the reasons for decision of the judicial officer, it is my opinion that what must be demonstrated is that the error is so fundamental to the decision of the court as to strike at the very roots of its order and to invalidate it."
[39][1988] 1 VR 322
This notion has been described in the context of appeals against errors of law as a "vitiating error". In Body Corporate Strata Plan No. 4166 & Ors v Sterling Properties Ltd (No. 2)[40] Ormiston J stated:
"Further, it seems established that failure to consider relevant matters can constitute a vitiating error. As Gowans J observed in Wattle Glen Estates Pty Ltd v MMBW (1974) 40 LGRA 104 at 109:
'In this connection reliance was placed on the limited reasons stated by the tribunal at the time of giving its decision as indicating a failure to give consideration to relevant circumstances and considerations advanced in evidence adduced and in argument submitted for the appellant. If it were established that there was a failure of this kind, there would be, in my opinion, a miscarriage of discretion vitiating the determination: see Harrison v Mansfield [1953] VLR 399'."
[40][1984] VR 903 at 913-4
In Portland Properties v MMBW[41] Smith J (with whom Adam J concurred) stated:
"It would not be enough for the appellant to show that the tribunal's reasons for its decision are so expressed as to suggest the possibility that the tribunal proceeded upon a wrong view of the law. This court is not entitled to interfere with the decision unless it is satisfied that there was, in fact, a vitiating error of law."
[41]38 LGRA 6 at 18
In my opinion the error of law which has been identified in the present case was a vitiating error of law which invalidates the decisions of the Court. It has been established on the balance of probabilities that the appeal Judge did not have regard to an important factor affecting the intuitive synthesis involved in sentencing.
For the above reasons the sentences imposed by the County Court, as set out in the Notice to Certain Officers signed by the appeal Judge's Associate and tendered before me in this matter, will be quashed and set aside. Subject to further submissions from counsel each appeal by the DPP pursuant to s.84 of the Magistrates' Court Act will be remitted for hearing by the County Court in accordance with law by a Judge other than the appeal Judge.
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