Gild v Magistrates' Court of Victoria
[2015] VSC 84
•20 MARCH 2015
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
S CI 2014 03000
| MICHAEL HUBERT GILD | Plaintiff |
| v | |
| THE MAGISTRATES’ COURT OF VICTORIA & ORS | Defendants |
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JUDGE: | DIXON J |
WHERE HELD: | MELBOURNE |
DATE OF HEARING: | 10 MARCH 2015 |
DATE OF JUDGMENT: | 20 MARCH 2015 |
CASE MAY BE CITED AS: | GILD v MAGISTRATES’ COURT OF VICTORIA |
MEDIUM NEUTRAL CITATION: | [2015] VSC 84 |
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Judicial Review - Criminal law - Indictable offence triable summarily – Defendant does not consent to summary hearing – Defendant committed for trial in County Court at conclusion of committal hearing - Entitlement to a summary hearing after a committal hearing – Whether relief under Order 56 in the nature of Certiorari or Mandamus available – ss 28, 29, 30, 54, 97, 128, 141, 168, Ch 3, Ch 4 and Ch 5 Criminal Procedure Act 2009 – ss 54, 56 Magistrates Court Act 1989.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr D Sharp | Erhardt & Associate |
| For the Third Defendant | Ms K Argiropoulos | Vaille Anscombe, Solicitor for Public Prosecutions |
HIS HONOUR:
The issue that I must determine in this proceeding is whether the plaintiff, as a person charged with an indictable offence that may be heard and determined summarily was entitled to a committal hearing before a summary hearing (which the plaintiff referred to as a summary trial); or, put another way, to an order at the conclusion of a committal hearing, once the magistrate was satisfied that the evidence was of sufficient weight to support a conviction, committing him to a summary hearing in the Magistrates Court. For the reasons that follow, the plaintiff’s claim is misconceived and will be dismissed. There was no error of law made by the Magistrates Court.
The proceedings below
By summons, the third defendant charged the plaintiff with one count of theft contrary to s 74 of the Crimes Act 1958. The charge alleged that between 18 July 2011 and 23 December 2011, the plaintiff stole cash to the value of $3,215, being property belonging to Szwarcbard Pharmacy. The third defendant initiated the prosecution in the summary jurisdiction of the Magistrates’ Court by listing the proceeding for a mention hearing in the Magistrates’ Court at Moorabbin. The offence is an indictable offence that may be heard and determined summarily. The plaintiff elected to proceed to a committal hearing and the case was transferred to the Magistrates’ Court at Melbourne for a filing hearing.
Then, on 23 January 2014 at a committal mention, the plaintiff’s counsel informed the court that the plaintiff wished to have the matter determined summarily but only after proceeding to a committal hearing. From the outset, the plaintiff’s counsel informed the Magistrates’ Court that he considered the disclosure of the prosecution case by the hand-up brief to be inadequate and that, to properly protect the plaintiff’s position, a committal was required before the charges were determined in a summary hearing. Each of the magistrates to whom this submission was put at the interlocutory stages has questioned whether the process being sought by the plaintiff was available under the provisions of the Criminal Procedure Act 2009.
At the committal mention, the plaintiff, by his counsel, refused to consent to summary jurisdiction and the charges were listed for a committal hearing on 14 March 2014, with the plaintiff being granted leave to cross-examine three witnesses.
The committal was listed for hearing before Magistrate Cameron. At the outset, her Honour observed that the charge was initiated in the court’s summary jurisdiction and that the accused had elected, by not consenting to summary jurisdiction, to have the charges dealt with by judge and jury. Her Honour noted that the magistrate at the committal mention had refused the plaintiff’s application for a committal followed by a summary contest. The prosecutor formally confirmed with the magistrate that the informant applied to have the matter determined summarily and the magistrate expressed her view that the charge was appropriate to be determined summarily. The magistrate then invited the plaintiff to consent to a summary hearing by the Magistrates’ Court. The plaintiff’s counsel did not directly respond to that invitation but contended that the plaintiff was entitled to a committal hearing. Magistrate Cameron also expressed doubt that the plaintiff’s understanding of the available procedures under the Criminal Procedure Act was correct. The court received submissions about the proper procedure and offered to give a preliminary ruling.
The magistrate then put the issue to the plaintiff a second time and the following exchange occurred:
HER HONOUR: Well, I’ll ask you. Does your client seek to have this matter dealt with by judge and jury or does he consent to the jurisdiction of this court?
COUNSEL:My client wishes this matter to be determined as a committal and we will be submitting that it should be discharged upon committal.
HER HONOUR: No, no, that’s a separate consideration.
COUNSEL: That’s a preliminary consideration.
HER HONOUR: No, no, but I’m asking whether your client consents to the jurisdiction of this court to determine the matter.
COUNSEL:It won’t arise until he’s committed for trial and should not arise before he’s committed for trial. We are seeking a committal at which we will be submitting he should be discharged.
HER HONOUR: If your client does not seek to have the matter dealt with by judge and jury it is an indictable offence in this case having regard to the quantum that is triable summarily and I regard it as a matter that is appropriate to be tried summarily. If your client consents to the jurisdiction of this court, or doesn’t seek to not consent, then I’ll order that the matter proceed in this court and I’ll charge your client and ask him to enter a plea and we’ll proceed.
COUNSEL:No, with respect, your Honour. That’s not what we seek and with all due respect it is not what the law provides. The law provides …
HER HONOUR: Well, that’s why I’m asking you to establish that and you declined to do that because you want to do that at the end of a committal and I can only take from that that your client does not consent to the jurisdiction of this court finally determining the matter.
In the preceding exchange, the plaintiff’s counsel avoided a direct response to her Honour’s question. After further argument, the plaintiff’s counsel made his position clear, stating:
And I raised this point at the beginning. I deny that we have ever rejected summary jurisdiction. We have asked for a committal. It has been assumed by asking for a committal that we’ve rejected the jurisdiction. That is not the case. We have not rejected the jurisdiction. We have asked for a committal. We are entitled to ask for a committal and we are entitled to wait until the end of the committal to determine our final position.
The magistrate then summarised the submissions that had been put to her and ruled that, after considering the matters specified in s 29(2) of the Criminal Procedure Act 2009, the charge was appropriate to be determined summarily and offered the plaintiff a summary hearing. In the course of that ruling, the magistrate stated that an accused person is not entitled to a committal hearing ahead of a summary trial. The following exchange then occurred:
HER HONOUR: So does your client consent to this court determining the matter?
COUNSEL:If your Honour’s directing me that I must answer the question and that if I answer summarily there will be no committal, in other words, if I say that we consent at this stage to summary jurisdiction your Honour will direct that the committal not proceed?
HER HONOUR: I will then proceed to determine the hearing in accordance with Part 3(3) of the Criminal Procedure Act.
COUNSEL:I take that as no. I, under protest, will say we do not consent at this stage to summary jurisdiction. If that is your Honour’s ruling then we do not consent at this stage to summary jurisdiction and we wish to proceed with the committal.
The committal hearing then proceeded. At the conclusion of the evidence, the plaintiff’s counsel put two submissions. The first submission was that the court should discharge the defendant. If that submission was rejected, the plaintiff’s counsel submitted that the committal should be to the Magistrates’ Court for a summary trial. The plaintiff disputed that he was offered, but had declined, a summary trial. The magistrate sought the source of a power to commit a defendant for a summary trial. Stating that she would hear a further submission from the plaintiff in support of this application, the magistrate observed that whether a charge might be heard and determined summarily was discretionary and she invited a submission from the plaintiff as to why, when the ordinary procedures of criminal process had been ‘thwarted at every turn’, she should reward such conduct with an exercise of discretion in the plaintiff’s favour for a summary hearing. Towards the end of his submission, the plaintiff’s counsel contended that the prosecutor was, by his attitude towards whether or not he would acquiesce in a summary trial, abusing the process, a proposition that was rightly rejected by the magistrate.
The magistrate’s ruling
The magistrate then announced, with reasons, that she was satisfied that there was evidence of sufficient weight to support a conviction and committed the plaintiff for trial. The magistrate characterised the plaintiff’s application as being, first, for a discharge, and if that submission found no favour, a grant of summary jurisdiction. Noting that a determination to commit for trial was inherent in ruling against discharge, the magistrate dealt with the submissions in reverse order. The magistrate reasoned that on a proper reading of the Criminal Procedure Act, a committal proceeding is contemplated ahead of a trial by judge and jury and the Act does not contemplate an accused person having a right to a committal hearing ahead of a summary hearing whether it be plea or contest, placing particular weight on s 158 of the Act. She rejected the plaintiff’s submission based on the purpose of a committal hearing, expressed in s 97(a) of the Act, being to determine whether a matter is appropriate for summary hearing. There was, her Honour correctly reasoned, no doubt at the commencement of the proceeding that the matter was appropriate for summary determination and a summary hearing was offered and rejected. There was no relevant change in circumstance during the committal hearing. The plaintiff had failed to persuade her that on any reading of the Act there was an entitlement to a committal hearing ahead of a summary hearing. Further, in the exercise of a discretion that required the court to have regard to any other matters that the court considers relevant, the magistrate concluded that it was not in the interests of the speedy administration of justice to reward litigants who proceed otherwise than in accordance with the processes under the Act.
The magistrate then dealt with the application for discharge, rejecting it and her reasons for doing so are not presently relevant. The transcript, and the court’s order, record that the magistrate ordered that the plaintiff be committed for trial and directed that the plaintiff be tried at Melbourne County Court on 20 May 2014.
The grounds of appeal
By an amended originating motion, the plaintiff contended that in rejecting the plaintiff’s application for summary trial, and ordering that the plaintiff be committed for trial in the County Court, as aforesaid, rather than in the Magistrates’ Court:
(a)her Honour misconstrued and misapplied the provisions of the Criminal Procedure Act 2009;
(b)took into account matters, which properly were unjustified, irrelevant and ought not to have been considered;
such as to constitute jurisdictional error and/or error of law on the face of the record.
The plaintiff sought to review the magistrate’s order that committal should be to the County Court rather than the Magistrates’ Court and to obtain an order in the nature of certiorari and/or mandamus and/or prohibition on the basis that the magistrate’s order was void or alternatively voidable or should be voided, and that the matter should be returned to the Magistrates’ Court for fixing as a summary trial. In the alternative, the plaintiff sought an order transferring the proceeding from the County Court to the Magistrates’ Court for fixing as a summary trial pursuant to s 168 of the Criminal Procedure Act.
The legislative scheme
One of the purposes of the Criminal Procedure Act was to clarify, simplify, and consolidate the laws relating to criminal procedure in the Magistrates’ Court, the County Court, and the Supreme Court. On this application, the relevant provisions of the Act are as follows. Section 5 provides that a criminal proceeding may be commenced by filing or signing a charge sheet in accordance with s 6. That is what occurred in this case. Moreover, in compliance with s 10(2), as the charge sheet contained a charge for an indictable offence that may be heard and determined summarily, the proceeding was listed for a mention hearing because the informant had not requested a committal proceeding under s 6(4). Section 28 identifies the indictable offences that may be heard and determined summarily if s 29 is satisfied and it is common ground that the charge laid by the third defendant could be heard and determined summarily.
Section 29 provides:
29When an indictable offence may be heard and determined summarily
(1)The Magistrates' Court may hear and determine summarily a charge for an offence to which section 28(1) applies if—
(a)the court considers that the charge is appropriate to be determined summarily, having regard to the matters in subsection (2); and
(b) the accused consents to a summary hearing.
Section 29(2) sets out the matters that the court must have regard to in exercising the discretion under s 29(1). Those matters are the seriousness of the offence, the adequacy of sentences available to the court having regard to the accused’s criminal record, whether a co-accused is charged with the same offence, and any other matter that the court considers relevant.
Section 30 sets out the procedure for indictable offences that may be heard and determined summarily. The section states:
30Procedure for indictable offences that may be heard and determined summarily
(1)The informant or the accused may apply for a summary hearing under section 29(1).
(2)Without any application under subsection (1), the Magistrates' Court may offer a summary hearing under section 29(1).
(3)An application for, or an offer of, a summary hearing may be made at any time before the Magistrates' Court determines whether to commit the accused for trial.
(4)If an application for a summary hearing is made before the hearing of any evidence, the Magistrates' Court may seek from the prosecutor or, if the informant is appearing in person, the informant and he or she must give—
(a)an outline of the evidence which will be presented for the prosecution; and
(b)any other information which the court considers relevant—
for the purpose of enabling the court to determine whether to grant a summary hearing.
(5)Any statement made by the prosecutor or informant under subsection (4) is not admissible in evidence in any subsequent proceeding in respect of the charge.
(6)If the Magistrates' Court grants a summary hearing, the hearing and determination of the charge must be conducted in accordance with Part 3.3.
Part 3.2 of the Act sets out the procedure that precedes a summary hearing. In particular, Division 2 of Part 3.2 provides for pre-hearing disclosure of the prosecution case. Sections 35 to 41 specify when preliminary or full briefs are to be served and their content. Section 42 imposes a continuing obligation of a disclosure upon the informant and s 43 permits an accused to request certain material that has not been provided. Under s 46 of the Act, an accused may apply for an order requiring disclosure that has been refused after being required in accordance with these provisions. There is no provision in Chapter 3 permitting access to committal hearings, which are governed by Chapter 4, as a process of preliminary disclosure for a Chapter 3 summary hearing.
Part 3.3 of Chapter 3 regulates the procedure on a summary hearing.
Chapter 4 of the Act governs committal proceedings. Section 96 provides that a committal proceeding need not be held in cases in which the accused is charged with an indictable offence where the charge is heard and determined summarily. Section 97 states the purposes of a committal hearing:
97 Purposes of a committal proceeding
The purposes of a committal proceeding are—
(a)to determine whether a charge for an offence is appropriate to be heard and determined summarily;
(b)to determine whether there is evidence of sufficient weight to support a conviction for the offence charged;
(c) to determine how the accused proposes to plead to the charge;
(d) to ensure a fair trial, if the matter proceeds to trial, by—
(i)ensuring that the prosecution case against the accused is adequately disclosed in the form of depositions;
(ii)enabling the accused to hear or read the evidence against the accused and to cross-examine prosecution witnesses;
(iii)enabling the accused to put forward a case at an early stage if the accused wishes to do so;
(iv)enabling the accused to adequately prepare and present a case;
(v)enabling the issues in contention to be adequately defined.
Section 100 provides for the types of hearings that may be held in a committal proceeding. Relevantly in this case, there was a filing hearing under s 101 and a committal mention hearing under s 125. Part 4.4 of the Act specifies the pre-hearing disclosure required of the prosecution prior to a committal hearing. The procedure at a committal hearing is set out in s 128 of the Act, which states:
128 Committal hearing
At a committal hearing, the Magistrates' Court—
(a)may offer a summary hearing or determine an application for a summary hearing in accordance with section 30;
(b) may hear evidence in accordance with section 130;
(c)if the committal hearing proceeds, must determine, in accordance with section 141, whether there is evidence of sufficient weight to support a conviction;
(d)may make any order or give any direction that the court considers appropriate.
Where, as in this case, a hand-up brief was used the determination of committal proceedings is governed by s 141. Section 141(4) provides:
141 Determination of committal proceeding where hand-up brief used
…
(4)At the conclusion of all of the evidence and submissions, if any, the Magistrates' Court must—
(a)if in its opinion the evidence is not of sufficient weight to support a conviction for any indictable offence, discharge the accused; or
(b)if in its opinion the evidence is of sufficient weight to support a conviction for the offence with which the accused is charged, commit the accused for trial in accordance with section 144; or
(c)if in its opinion the evidence is of sufficient weight to support a conviction for an indictable offence other than the offence with which the accused is charged, adjourn the committal proceeding to enable the informant to file a charge-sheet in respect of that other offence and, if a charge-sheet is filed, must commit the accused for trial in accordance with section 144.
Section 144 requires that before committing an accused for trial, the court must follow certain procedures that include taking the accused’s plea and providing certain information to the accused as well as remanding the accused in custody or dealing with the question of bail.
Section 155 provides that nothing in the Act alters the nature of a committal proceeding from that existing immediately before the commencement of that section.
Another form of criminal proceeding specified by the Act is trial on indictment, which is governed by Chapter 5. Section 158 states that Chapter 5 applies if an accused is committed for trial under Chapter 4. Chapter 5 specifies the procedure for trial on indictment before a judge and jury in the Supreme or County Courts. That procedure includes a power to remit proceedings for a charge for an indictable offence to the Magistrates’ Court for a summary hearing. Section 168 states:
168Court may transfer certain charges to Magistrates' Court or Children's Court
(1)At any time except during trial, the Supreme Court or the County Court may order that a proceeding for a charge for an indictable offence that may be heard and determined summarily be transferred to the Magistrates' Court or the Children's Court (as the case requires) if—
(a) the accused consents to the transfer; and
(b)the court considers that the charge is appropriate to be determined summarily, having regard to—
(i)in the case of the Magistrates' Court, the matters in section 29(2); or
(ii)in the case of the Children's Court, whether the Children's Court is required to hear and determine the charge summarily by section 356(3) of the Children, Youth and Families Act 2005.
(2)The court must not transfer a charge that the Magistrates' Court or the Children's Court has refused to hear and determine summarily unless there has been a significant change in the charges against the accused or in the prosecution case against the accused.
(3)If an order is made under this section, the transferred charge must be heard and determined summarily.
Section 337 of the Act states that unless the context otherwise requires, a power or discretion conferred on a court by or under the Act may be exercised by the court on the application of a party or on its own motion.
Plaintiff’s submissions
The plaintiff contended that the practice in relation to committal proceedings prior to the Criminal Procedure Act is no longer relevant. The entitlement of an accused person to a committal hearing is now to be determined from the plain language of the Act. The plaintiff contended that his refusal to consent to summary jurisdiction when it was sought by the prosecution and when it was offered by the court did not constitute a waiver of his right pursuant to s 30(3) of the Act to make a further request for summary jurisdiction prior to being committed. The procedure to be followed, which is set out in s 30(6) - (8), contemplates the conversion of a committal hearing into a summary hearing. The court was in error in concluding that the matter was suitable for summary hearing prior to the commencement of the committal hearing and the plaintiff was entitled to be informed by a committal hearing before choosing whether to consent to summary jurisdiction. That entitlement is found in s 97(a) of the Act, which gives a defendant a right to request, and participate in, a committal hearing before giving up his right to a jury trial.
In McKenzie & Anor v Magistrates’ Court of Victoria[1] Harper JA stated:
Section 141(4) of the Criminal Procedure Act prescribes what a magistrate presiding at a committal hearing must do at the conclusion of the evidence and submissions. He or she is limited by that legislation to one of three courses of action: the presiding magistrate may discharge the accused; or may commit the accused for trial on the charges brought; or may adjourn the committal to enable the informant to lay a further charge for another indictable offence and then commit the accused for that offence.
Section 141(4) begins with the words: ‘At the conclusion of all of the evidence and submissions, if any, the Magistrates’ Court must – ‘ (my emphasis). The section then proceeds to list the three alternatives set out above; and the legislation makes it clear that there are no others. The power to dismiss is not included among the only three options open.
[1][2013] VSCA 81, (2013) 39 VR 311, 322 [42]-[43].
The plaintiff submitted that the limited options open to a magistrate following committal, in the context of s 97(a), justified the conclusion that following the hearing of a committal, the magistrate has power to accept a request for, or to offer, a summary hearing, and if accepted to thereupon commit the defendant for summary trial.
The plaintiff contended that a trial, within the meaning of that term as it is used in s 141(4)(b), included a summary hearing under Part 3.3 of the Act. In that way, the Act explicitly authorised committal to a ‘summary trial’. The plaintiff submitted that the availability of the possibility of committal to a Magistrates’ Court trial was consistent with the changes in the wording of the Criminal Procedure Act from the specific requirements of the previous legislation namely s 56(7) of the Magistrates’ Court Act 1989 that permitted an order committing the accused for trial only to a superior court.
It is convenient, in attempting to follow the plaintiff’s submission, to set out the former procedure under Magistrates’ Court Act. Section 54 provided that the informant or the defendant might apply for a summary hearing and that without any application the court may offer a summary hearing. Such applications or offers might be made before the hearing of any evidence or during or immediately after the hearing of evidence for the prosecution. When a defendant agreed to summary jurisdiction, the summary hearing procedure, then set out in Schedule 2 of the Act, was followed. Section 56 provided that a committal hearing had to be held in all cases in which the defendant was charged with an indictable offence, except where there was a direct presentment by the Director of Public Prosecutions or a crown prosecutor, the defendant elected to stand trial without a committal proceeding having been conducted, or the charge was heard summarily. A committal proceeding had to be conducted in accordance with Schedule 5 of the Act.
The procedure when the defendant elected to stand trial without a committal hearing was set out in s 56(7), which provided:
(7)On the appearance of the defendant before the Court, it must, if in its opinion the defendant understands the nature and consequence of the election, commit the defendant for trial and must—
(a)remand the defendant in custody until trial or a date before trial fixed by the Court; or
(b)grant bail until trial or a date before trial fixed by the Court.
If a defendant was committed for trial under this subsection, Schedule 5 applied as if the defendant had been committed for trial at the conclusion of a committal proceeding conducted in accordance with that Schedule at which no witness was required to attend. The procedure on determination of a committal proceeding under Schedule 5 was set out in s 23 of the Schedule. The options then available to the court were the same as those now prescribed under the Criminal Procedure Act, namely order the defendant to be discharged, commit the defendant for trial, or direct the informant to prepare a charge for an indictable offence other than that with which the defendant is charged and then commit the defendant for trial.[2]
[2]I have not referred to other procedural matters such as taking the accused’s plea and the court’s obligations to provide certain information and warnings that are not relevant on this application.
The plaintiff’s submission based on s 56(7) of the Magistrates’ Court Act is not borne out by looking at the terms of the repealed legislation. It is misconceived. The expression ‘commit for trial’ has always referred to trial on indictment.
Next, the plaintiff contended that the outcome of the committal in this case had been positive and a benefit to the overall administration of justice by permitting a procedure that overcame the shortcomings in the police brief. In this respect, the purposes for holding the committal as set out in other sub-sections of s 97 were fulfilled. The plaintiff submitted that to arbitrarily deny a committal to those who eventually might wish to apply for a summary hearing is to remove one of the legislative checks and balances intended to ensure that the investigation and prosecution of criminal offences are adequately and properly conducted.
The plaintiff contended that the decision of the High Court of Australia in Minister for Immigration and Citizenship v Li[3] brought about fundamental change in the law of judicial review such that earlier precedent to the effect that an order in the nature of certiorari will not lie to quash a decision of a magistrate to commit or not to commit an accused person for trial need to be considered anew.
[3][2013] HCA 18, (2013) 249 CLR 332.
Finally, the plaintiff submitted that by virtue of the application for judicial review, the Supreme Court is properly seized of the criminal proceeding and in a position to grant relief pursuant to s 168 of the Act, in order to achieve the manifest purpose of ensuring that criminal proceedings are handled at the most suitable level of the justice system.
Conclusions
In Phelan v Allen,[4] the Full Court held that orders of a Magistrates Court committing or refusing to commit a defendant are ministerial and not subject to judicial supervision. More recently, in Potter v Tural & Another; Campbell v B.A.H. & Another,[5] Callaway JA stated:
It is well established in this State that an order in the nature of certiorari will not lie to quash the decision of a magistrate to commit, or not to commit, an accused person for trial. The whole of the committal proceeding is directed to that ultimate, non-reviewable decision, even if the proceeding also fulfils the important incidental function of informing the accused of the case against him or her. If the ultimate decision does not affect rights, and therefore does not afford a subject matter to quash, a decision in running can be in no better case from the point of view of an applicant.
In the same case, Batt JA stated: [6]
It is established by a long line of authority in Victoria that a magistrate's order committing for trial or refusing to commit is ministerial and not judicial and also is not amenable either to certiorari (as I shall for convenience call relief in the nature of certiorari to quash) or to appeal under statutory appeal procedures replacing certiorari. The better view as to the ground of the latter proposition is now considered to be, not the ministerial nature of the order, but the fact that it determines nothing save the sufficiency, in the magistrate's opinion, of the evidence to put the defendant upon trial for an indictable offence. Although the law in some States, in the Federal Court and in England, Wales and Northern Ireland may be different in some cases at least as a result of legislation, neither respondent sought to challenge the Victorian authorities (assuming that a challenge would have been possible before the Court as presently constituted). Now, the principal purpose of a committal hearing is to determine whether in substance, however the precise test may be phrased, the evidence is sufficient to warrant the defendant's being put on trial for an indictable offence. If a decision or order effectuating that purpose is not amenable to certiorari, it seems to me impossible for a preliminary decision or ruling made on the way to effectuating that purpose, even if denominated an order, to be amenable to certiorari: the greater comprehends the lesser. The judgment of Smith, J. in Phelan v. Allen makes this clear. Neither respondent could have waited until the conclusion of the committal proceeding and, if he was committed for trial, have then obtained certiorari to quash that decision on the basis that cross-examination of the alleged victim or victims had been refused erroneously, for, as stated, the decision to commit would not have been amenable to certiorari. I cannot accept that by moving earlier but on the same basis the respondent could obtain certiorari.[7]
[4][1970] VR 219.
[5][2000] VSCA 227, (2000) 2 VR 612, 614, [3]. See also Guenser v The Magistrates Court of Victoria [2008] VSC 57.
[6]Ibid 617, [20].
[7]Ibid 617, [20].
The plaintiff put two submissions about the state of the law. First, the plaintiff contended that the decision of the High Court in Minister for Immigration and Citizenship v Li[8] now provides that ‘unreasonableness’ can be a determining factor in a finding on judicial review that an administrative decision was made in excess of jurisdiction, and that based on the principles of unreasonableness stated in Li, the magistrate’s decision to commit the plaintiff to trial in the County Court rather than the Magistrates Court ‘was, for a variety of reasons, unreasonable, including, as aforesaid, failing to take relevant matters into consideration, taking irrelevant matters into consideration and misdirecting herself on the provisions of the relevant statute.’[9] In argument, counsel was unable to develop this contention by specific reference to the transcript of proceedings before the magistrate.
[8][2013] HCA 18, 249 CLR 332.
[9]Quoting from the written submissions of counsel for the plaintiff filed in support of the application.
In Li, the High Court was concerned with the issue of whether the refusal of a Migration Review Tribunal to adjourn a visa application was unreasonable or plainly unjust. There were issues about when and whether illogicality or irrationality may amount to a jurisdictional error. The relationship between the principles of review on the grounds of irrationality/illogicality/unreasonableness and the concept of Wednesbury unreasonableness may be uncertain on the current state of the authorities. This is especially so when the decision under challenge is a factual decision, which cannot be regarded as a ‘jurisdictional fact’ such as the ‘satisfaction’ of the decision-maker or decisions that do not involve the exercise of a discretion.[10] There was no doubt that the type of decision of the Tribunal in Li was, in general terms, amenable to judicial review and there was no occasion for the court to consider the correctness of the well-established principle applying to committal hearings set out above and it did not do so. Further, the plaintiff did not identify any respect in which it might be thought that the magistrate’s decisions at the committal hearing were unreasonable or irrational in the sense discussed in Li. For my part, I see no basis to apply that principle on the material filed on this application.
[10]See generally Ryan v The Grange at Wodonga Pty Ltd & Ors [2015] VSCA 17 at [82] per Neave JA.
Secondly, the plaintiff submitted that the rule of law that a superior court will not supervise a magistrate’s decision about committal was subject to exception, citing The Age Company & Ors v The Magistrates Court of Victoria[11] and Herald and Weekly Times Ltd v The Magistrates Court of Victoria.[12] These cases concerned orders restricting publication of material from a committal hearing under s 126 of the Magistrates Courts Act 1989. Kaye J (as he then was) stated:[13]
Before dealing with each of the bases upon which the orders are sought, it appears necessary to address some preliminary remarks relating to the nature of that relief. First, the proceedings before the magistrate were committal proceedings. In general, such proceedings are characterised as ministerial and not judicial. Accordingly it is well established, at least in the State of Victoria, that an order for certiorari will not lie to quash the decision of a magistrate whether to commit an accused person for trial; Phelan v Allen; Brygel v Stewart-Thornton; Potter v Tural and Anor. Similarly, a decision made by a magistrate, in the course of committal proceedings, denying leave to cross-examine a witness, is not amenable to an order in the nature of certiorari; Potter v Tural (above). None of the parties addressed to me any submissions that, similarly, an order in the nature of certiorari may not be made in respect of an order by a magistrate under s.126 of the Magistrates' Court Act in respect of committal proceedings before that magistrate. I note that certiorari was sought in respect of an order of a magistrate denying the plaintiff access to materials in a hand-up brief in Herald and Weekly Times Limited and Ors v The Magistrates' Court of Victoria and Ors. In that case there was no suggestion by the Court of Appeal that, in an appropriate case, certiorari may not lie. Neither was any such suggestion made when the matter was heard at first instance before Mandie J; Herald and Weekly Times Limited and Ors v The Magistrates' Court. Finally, in Re Robins SM; ex parte West Australian Newspapers Limited, the Full Court of the Supreme Court of Western Australia held that a decision by a magistrate, in committal proceedings, suppressing publication of evidence given at the preliminary hearing was amenable to an order with certiorari. Accordingly, the matter not having been argued before me, I shall assume that I do have jurisdiction to make an order for certiorari in respect of the magistrate's decision, should the necessary foundation for such an order be established.
[11](2004) VSC 10.
[12](2004] VSC 194.
[13](2004) VSC 10, [8].
In my view, these cases do not constitute an exception to the rule clearly stated by the Court of Appeal in Potter v Tural. The order under s 126 of the Magistrates' Court Act does not fall within the description proffered by either Callaway or Batt JJA of the justification for the rule that they identify. A non-publication or suppression order can be said to affect rights arising from what Whelan J (as he then was) described in Herald and Weekly Times Ltd as the fundamental importance of openness in the courts and the importance of the media's ability to responsibly report to the public proceedings before the courts, which have been emphasised in many authorities.[14] The rulings and decisions of the magistrate with which the plaintiff takes issue fall squarely within the rule in Potter v Tural.
[14](2004] VSC 194, [11].
There being no basis in law for the application for certiorari, it will be refused. Moreover, there is no basis demonstrated for mandamus as the applicant has not demonstrated any unperformed public duty that the Magistrate might be directed to perform. This application is misconceived and flies into the face of established authority.
The application is also misconceived in its assertion of error on the part of the magistrate. It is fundamental that the court was dealing with an indictable offence, which is, to state the obvious, an offence to be tried on indictment. As the authorities that I have cited make clear, the principal purpose of a committal hearing is to determine whether in substance the evidence is sufficient to warrant the defendant being put on trial for an indictable offence. The statutory reference to ‘trial’ in the phrase ‘commit the accused for trial’ in s 141(4)(b) of the Act is to the process of trial on indictment, which is the procedure under Chapter 5 of the Act. So much is clear from a consideration of the whole of the Act. As Harper JA stated in McKenzie, there are only three courses open to a magistrate at the conclusion of the committal. Contrary to the plaintiff’s contention committal to a trial under Part 3.3 of the Act, which is a summary hearing, is not an available option. Here the plaintiff was committed for trial on indictment in the County Court on the charge brought by the third defendant. That charge was for an indictable offence. Although there is no dispute by anybody that it is suitable for summary determination, the plaintiff did not consent to that procedure. The magistrate refused his request for a committal hearing before he consented to summary jurisdiction. No error was shown in this decision.
The plaintiff was not arbitrarily denied a committal. His argument based on the purposes of a committal under s 97 is also misconceived. Section 97 reflects legislative confirmation of the purposes of a committal as developed at common law. Policy choices have been made about the level and form of pre-trial disclosure procedures for serious indictable offences to be tried by jury. As the Act makes clear, a different pre-trial disclosure procedure applies in summary hearings, including of indictable offences tried summarily, that does not include a committal hearing. As the learned magistrate recognised, there are sound reasons for a simplified procedure for lesser offences that, ipso facto, cannot constitute any denial of the rights of an accused person. The plaintiff’s submission based on the concept of a ‘conviction’ and a supposed distinction between a ‘trial’ and a ‘hearing’ is misconceived. The Act consistently used the term ‘summary hearing’ when referring to a final disposition of criminal charges in a Magistrates Court under Chapter 3 Part 3.3 and the term ‘trial’ when referring to a final disposition of criminal charges by trial on indictment under Chapter 5.
Section 158 of the Act provides that the provisions of Chapter 5 apply to an accused person committed for trial at a committal under Chapter 4 of the Act. There is no provision in the Act that permits an accused person a summary hearing under Chapter 3 upon committal for trial under Chapter 4 of the Act. Although the process was not exhausted that enables an accused person charged with an indictable offence that may be summarily tried to consent to a summary hearing, that outcome cannot be achieved by an order committing the accused for trial.
A summary hearing may occur in accordance with the procedure that I have outlined above. I am satisfied that the plaintiff was given every opportunity to consent to a summary hearing but declined to do so. Moreover, the magistrate determined the submission that the court had power to, but would not in its discretion, offer the plaintiff a summary hearing at the conclusion of the committal hearing before ruling on whether to discharge the plaintiff.. Having rejected that submission, the committal hearing proceeded to determination and the magistrate was required to act in accordance with s 141(4) of the Act. As I have stated, the magistrate at that point had no power to commit the plaintiff for trial by a summary hearing, and her decision to commit the plaintiff to trial on indictment before the County Court is not amenable to judicial review under Order 56 of the Rules.
The plaintiff’s Originating Motion does not directly challenge the magistrates’ decision, at the conclusion of the evidence taken in the committal hearing to reject the plaintiff’s submission that on any reading of the Act there was an entitlement to a committal hearing ahead of a summary hearing and that, in the exercise of her discretion the magistrate did not again offer the plaintiff a summary hearing. Even if it did, I am not persuaded that the magistrate erred in law, either in construing the terms of the Act that govern the procedure at committal hearings or in the procedure that she adopted. There is no entitlement under the Criminal Procedure Act, or otherwise, to a committal hearing in advance of a summary hearing and the provisions that enable a committal hearing to continue as a summary hearing do not require otherwise.
The plaintiff relied on an obiter dictum of Coghlan J (as he then was) in Strangio v The Magistrates Court of Victoria.[15] In that case, a magistrate refused to accede to the plaintiff’s application for charges brought against him to be heard summarily. His Honour considered it inappropriate to grant the plaintiff a rehearing of his summary jurisdiction application for reasons that I need not set out. His Honour added, and this is the passage relied on by the plaintiff:[16]
If by any chance I am wrong about any of the earlier matters, it is open for the plaintiff to make application to the Magistrates’ Court at the commencement of the committal for summary jurisdiction and that application could, if necessary, be renewed at any time up until the plaintiff is committed for trial (if the evidence is sufficient to do so).
I have omitted the footnote citation but it makes clear what is plain from the text of his Honour’s observation that his Honour was referring to s 30(3) of the Act. This decision does not assist the plaintiff in respect of any of the criticisms that he advances of the conduct of the magistrate.
[15][2012] VSC 333.
[16]Ibid, [24].
Finally, the plaintiff relied on s168 of the Act in support of an application to remit the charge to the Magistrates Court for a summary hearing. The section permits the Supreme Court or the County Court, at any time except during trial, to order that a proceeding for a charge for an indictable offence that may be heard and determined summarily be transferred to the Magistrates' Court or the Children's Court (as the case requires). The plaintiff would consent to such a transfer but the second precondition under the section is that the court considers that the charge is appropriate to be determined summarily, having regard to the matters in s 29(2) of the Act.
The reference in the section to the Supreme Court or the County Court is a reference to the court that is seised of the criminal proceeding and it does not contemplate that the court would exercise that power to remit in proceedings under Order 56 for judicial review. So much is clear from the context of s 168 within Part 5.2 of the Act, which is concerned with the filing of indictments and the place of trial. The court exercises the discretion informed by the matters set out in s 29(2) of the Act. A criminal mention court would be in a position to undertake such an assessment, while the material before the court on proceedings under Order 56 for judicial review is usually restricted to what is necessary for the purposes of that application. Counsel for the plaintiff made no attempt to identify in the material before the court on this application the factual basis for the court to be satisfied about the matters in s 29(2) and even were I satisfied that it was appropriate to do so, I am not persuaded of a proper basis to exercise the power to remit.
Further, s 168(2) provides that the court must not transfer a charge that the Magistrates' Court has refused to hear and determine summarily unless there has been a significant change in the charges against the accused or in the prosecution case against the accused. I have already stated that the magistrate’s refusal at the conclusion of the committal hearing to hear and determine the charge summarily was free of error and no submission was put to me that there has been any significant change in the charges against the accused or in the prosecution case against the accused. The power to remit is discretionary and I remain unpersuaded that the plaintiff is entitled to an exercise of discretion in his favour in the circumstances of this case, particularly because the plaintiff has sought a process, not available as a means of preliminary disclosure of the prosecution case, of a committal hearing before a summary hearing. Taken into account with all relevant matters referred to in these reasons, that circumstance is sufficient to justify a refusal to exercise a discretion in this case.
The originating motion is dismissed. I will hear from counsel about costs.
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