Giurina v Director of Public Prosecutions
[2017] VSC 289
•26 May 2017
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S CI 2017 01104
| ERMANNO GIURINA | Plaintiff |
| v | |
| DIRECTOR OF PUBLIC PROSECUTIONS (on behalf of Detective Senior Constable Anna Louise McIlroy) | First Defendant |
| and | |
| THE MAGISTRATES’ COURT OF VICTORIA | Second Defendant |
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JUDGE: | RIORDAN J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 25 May 2017 |
DATE OF JUDGMENT: | 26 May 2017 |
CASE MAY BE CITED AS: | Giurina v DPP & Anor |
MEDIUM NEUTRAL CITATION: | [2017] VSC 289 |
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ADMINISTRATIVE LAW – Judicial review – Certiorari – Magistrates’ Court of Victoria – Application for permanent stay of summary proceedings – Whether error on the face of the record – Contents of the record of the Magistrates’ Court – Principles to be applied on application for permanent stay of proceeding – Whether prosecution foredoomed to fail – Allegation of evidence illegally obtained.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Appeared in person | |
| For the Defendant | Mr D A Trapnell QC with Mr C T Carr | Mr J Cain, Solicitor for Public Prosecutions |
HIS HONOUR:
By originating motion filed 28 March 2017, the plaintiff seeks orders in the nature of certiorari setting aside an order of the Magistrates’ Court of Victoria made on 30 January 2017 refusing the plaintiff’s application for a permanent stay of a criminal proceeding against the plaintiff. In the oral hearing, he sought also that, if his review were successful, that this Court exercise its inherent supervisory jurisdiction and permanently stay the proceedings in the Magistrates’ Court of Victoria.
The litigation history
On 7 February 2013, Detective Senior Constable McIlroy charged the plaintiff with 182 charges of theft from Owners Corporation Strata Plan No 1579 (formerly Body Corporate Strata Plan No 1579), being the relevant owners corporation for the property at 5 Headley Street, Coburg North, arising out of alleged incidents between 4 May 2006 and 28 December 2011.
On 28 March 2013, the plaintiff applied to the Magistrates’ Court ‘for an order that this proceeding be permanently stayed in order to prevent or nullify an abuse of process’.
On 12 December 2013, Magistrate Pithouse ordered that the criminal charges be permanently stayed on the basis that ‘it would be inappropriate for these matters to be further litigated’, following the dismissal by the Victorian Civil and Administrative Tribunal of a contempt proceeding against the plaintiff brought under s 137 of the Victorian Civil and Administrative Tribunal Act 1988.
On 24 February 2014, the first defendant (‘the defendant’) filed a proceeding seeking judicial review of the decision of Magistrate Pithouse on a number of grounds. The first of which was that the Magistrate erred in law in making the order to permanently stay the charges instead of hearing and determining the charges pursuant to s 25(1) of the Magistrates’ Court Act 1989.
On 29 January 2016, Coghlan J found that the abovementioned first ground of the DPP was made out and set aside the orders of Magistrate Pithouse. However, ‘[s]ince not all the grounds set out in the application for a stay have been dealt with’ he remitted the matter for hearing before a different Magistrate.[1]
[1]DPP v Giurina [2016] VSC 15 [39] (Coghlan J).
On 22 December 2016, Magistrate McGrane heard the remitted stay application and on 30 January 2017 refused the plaintiff’s application for a stay. It is necessary to set out the transcript of the decision in full:[2]
[2]The transcript is marked unrevised. Citations are omitted and I have inserted the headings, which refer to the four grounds of the plaintiff’s application in the proceeding before me.
HIS HONOUR: On 22 December 2016 at Heidelberg Magistrates’ Court the accused, Ermanno Giona – Giurana, I apologise again, made an application of a permanent of 183 criminal charges laid against him. The accused is a qualified lawyer, but does not currently hold a practising certificate appeared in person and Mr Hutton of counsel appeared for the informant, Detective Senior Constable Anna McIlroy. The charges alleged 182 counts of theft, contrary to s 74 of the Crimes Act 1958 and one count of making a false document contrary to s 183A of that Act. During the course of the application, 24 charges of theft and the false document charge were withdrawn by the informant. It is convenient firstly to briefly set out the background of the matter.
On 18 November 2013, the accused made a similar application in relation to the 183 charges, which was granted at Heidelberg Magistrates’ Court on 12 December 2013. The informant appealed that decision to the Supreme Court and on 29 January 2016, Mr Justice Coghlan set aside the order of 12 December and remitted the proceedings to be heard before another magistrate. As fate would have it as a consequence of that order, the matter came before me on 22 December 2016. The judgment of Mr Justice Coghlan sets out the history of the proceedings in the Magistrates’ Court and the proceeding dealt with in VCAT instituted by the Owners Corporation, I think at that time then still known as a body corporate, of residences 1–5 Henley Street Coburg North. At paragraph 9 of his judgment His Honour set out the matters relied upon to support the applicant’s application for a stay.
His Honour dealt with [ground] B autrefois acquit, ground C oppression regarding litigation of matter resolved in earlier proceedings and ground D, contrary earlier verdict. He did not determine grounds A, unreasonableness and collateral purpose, or ground E, immunity under s 123 of the Owners Corporation Act 2006. In relation to grounds B, C and D at paragraph 33, His Honour determined that proceedings in VCAT did not raise the plea of autrefois acquit, oppression or contrary earlier verdict. Returning to the application made on 22 December 2016, prior to entertaining the application for a stay, the prosecution applied under s 30 of the Criminal Procedure Act 2009 for the charges to be dealt with summarily.
That course was consented to by the accused. Mr Hutton briefly set out the prosecution case, the allegations being briefly that the accused was appointed the manager of the Owners Corporation and misappropriated the total of approximately $30,000. The misappropriation was achieved by cash withdrawals from ATM machines and Browns Hotel and each charge of theft related to such a withdrawal. The allegation is that the moneys belong to the Owners Corporation, then known as Body Corporate or BC 1579. And dishonesty, it was submitted, could be inferred from the circumstances of the withdrawals.
I concluded that the matter was appropriate for summary jurisdiction. In support of his application for a stay the accused sought to tender an affidavit, but in my view there is no power to admit an affidavit in this court, unless by consent. The prosecution declined to consent, accordingly the accused gave viva voce evidence. In summary the accused testified that he is currently unemployed. He has been involved in the affairs of units at 5 Hedley Street Coburg North since 1969. On 20 October 2002, he entered into a loan agreement with the Owners Corporation, then known as Body Corporate 1579, see Exhibit A, whereby he loaned $18,715 to the Owners Corporation.
He also claimed he had authority to withdraw funds from the Owners Corporation bank account. He produced an ANZ Bank company account authority in the name of BC 1579 marked Exhibit B. It is to be noted that the accused is the only person authorised to operate the account and there is nothing within the document that purports to be authority from Body Corporate 1579. He also produced minutes dated 11 August 2002 of the Body Corporate, which record a resolution, he’d be appointed, “To act as a solicitor for fee and reward of the Body Corporate and its members”, see Exhibit C.
Throughout the course of his evidence the accused referred to the proceedings in VCAT and asserted that no finding of a dishonesty was made against him during that proceeding and accordingly the prosecution could not proceed to assert he had acted dishonestly, in relation to the funds of the Owners Corporation. He also asserted he had a belief he had a right in law, to withdraw moneys from the bank account due to the loan agreement and a solicitor’s lien over the funds in the bank account.
Furthermore, he asserted the police acted illegally when executing a search warrant at his residence on 7 February 2013. He testified that at the time of execution he had instructions from his client, that is, the Owners Corporation to claim legal professional privilege in relation to all documents seized by the police. He testified that the police did not take the seized documents before a court to be dealt with according to law nor did they seal the documents in an envelope and have the claim of privilege dealt with in accordance with a Supreme Court decision in Allitt v Sullivan.
He also referred to the Commissioner of Australian Federal Police v Propend … He also asserted the police had read the documents and by doing so had infected the proceedings against him. Subsequently he also referred to the court to The Queen v Grant …
[Ground 3]
He also sought to attack the issue of the search warrant, however, in my opinion the court should not go behind the warrant in an application for a stay.
The accused also referred to s 71(2) of the Crimes Act and submitted that as he was the person in possession or control of the funds, had a proprietary right or interest in the funds, due to a solicitor’s lien, the prosecution could not prove the money belonged to another and therefore the prosecution case was hopeless. In summary then, the grounds upon which the application is based are, firstly because of the operation of s 71(2) of the Crimes Act and his claim of right, the prosecution case against him is bleak and two, as there was no finding of dishonesty against him in VCAT, the prosecution were unable to assert he acted dishonestly and three, the police had breached the law on the execution of the search warrant and it would be unfair to proceed as he could not now receive a fair trial.
He also indicated that he had not abandoned his initial grounds for a stay, not dealt with by the Magistrate on 12 February–12 December 2013, or by Mr Justice Coghlan. I now turn to my conclusions. Firstly, I am satisfied this court has the power to grant the stay sought in the prosecution case if the prosecution case is foredoomed to failure. See Little (A pseudonym) v The Queen, 2015 Victoria Supreme Court 1962 and DPP v Brownlie … Furthermore, the court may grant such an application if there has been a serious abuse of power amounting to acts which offend the court’s conscience as being contrary to the rule of law and the right to a fair trial has been compromised. See Jago v The District Court of NSW …
[Ground 2]
Turning to ground 1, that is s 71(2) argument. Pursuant to s 71(1) of the Crimes Act, property is defined to include intangible property. A credit balance in a bank account is intangible property, sub-s 2 provides the property may be described as belonging to anyone who has possession or control of it, or having in it any proprietary right or interest. Nonetheless, such possession, control, or proprietary right or interest, must yield to the true owner. Section 71(2) merely reflects what was the common law position in relation to a theft being committed against somebody who has the possession of goods. In my opinion s 73(9) of the Crimes Act make that position clear.
On the material before me in the application it cannot be established in my view that the prosecution is unable to prove ownership of the credit balance in the bank account from which it is alleged the accused withdrew money. It is also noted the assertion by the accused, that he was the owner, is inconsistent with the name of the bank account. Turning to the accused claim of right s 73(2A) provides that a person who appropriates property, that is assumes any of the rights of the owner, is not acting dishonestly if that person believes he has a right in law to deprive the owner of that property.
In my opinion the question of acting dishonestly can only be determined when all the evidence is before the court. In my view the assertion by the accused during his evidence does not condemn the prosecution case to failure.
Turning to ground 2, it seems to me that Mr Justice Coghlan really dealt with this issue. In any event, it is tolerably clear that issue estoppel has no place in the criminal law of Australia. Furthermore, issue estoppel cannot apply where the parties are different. In my opinion any finding in or non-finding of dishonesty in VCAT proceedings, does not prohibit or restrict the prosecution from asserting if the accused acted dishonestly.
[Ground 1]
In relation to ground 3, the claim of legal professional privilege can be asserted by a person who has possession of documents in their capacity as solicitor on behalf of the client.
The privilege relates to the client, not the solicitor. On the material before me there is no evidence of the nature of the seized documents. The case relied upon by the accused as previously noted, relate to a claim of privilege by the client of the solicitor. No such claim is made on the material before me, or is the client subject to this criminal proceeding. In my opinion the ground is misconceived and any breach of the procedure set out in Allitt v Sullivan is not relevant to the accused. Even if that was not the case in my opinion, the evidence as it stands before me, does not permit conclusion about the claim and does not constitute a breach, it justifies a stay.
[Ground 4]
In relation to ground 4, there is simply no evidence before me which raises the issue of unreasonableness or collateral purpose.
Turning to ground 5, s 123 of the Owners Corporation Act 2006, provides that a member of an Owners Corporation who carries out the duties of a manager of the Owners Corporation without fee or reward is no personally liable for anything done or admitted to be done in good faith. A simple answer to the claim by the accused therefore is that the section does not provide immunity to a member of the Owners Corporation who does not act in good faith, that is, who acts dishonestly. Accordingly, for the foregoing reasons, in my opinion, the accused has not established the matters necessary for a stay to be granted. Thus the application is refused.
By the originating motion filed in this proceeding the plaintiff seeks to set aside the orders made by Magistrate McGrane on the basis that he made an error of law on the face of the record when he refused the plaintiff’s application for a permanent stay of the proceedings. The plaintiff relies on the following grounds:
(a)The plaintiff’s claim of legal professional privilege as the client himself and the illegal conduct of police in relation to this claim.
(b) The chances of conviction are bleak and the case is foredoomed to fail.
(c)The search warrant executed by police on 7 February 2013 was issued illegally due to its form and the Magistrate incorrectly concluded that ‘in law that would require [him] to go behind the search warrant.’
(d)There was no evidence before him which raised the issue of unreasonableness or collateral purpose.
Plaintiff’s Submissions
The Court Book as evidence
The plaintiff contended that the evidence before the Magistrate included the Court Book, being exhibit ‘EG–1’ to the plaintiff’s affidavit sworn on 27 March 2017 in support of the originating motion (‘the Court Book’). In support of this contention the plaintiff submitted as follows:
(a)The orders of the Magistrates’ Court of Victoria of 22 December 2016, that ‘Mr Giurina’s submissions to be filed and served by 21/11/16’, constituted consent by the defendant that the contents of the Court Book would form part of the evidence before the Magistrate.
(b)The Magistrate’s refusal to accept the evidence by affidavit was limited to the affidavit that the plaintiff sought to file on the day of the hearing.
(c)His affidavit of 29 September 2013 was read, and formed part of the evidence, in the hearing before Magistrate Pithouse and ‘[o]bviously the proceeding before Magistrate McGrane was a continuation of the same proceeding and therefore the above affidavit and submissions already formed part of the evidence and material in the proceeding’.
Expanded Record
The plaintiff submitted that the Magistrates’ reasons, which were incorporated in the court record by s 10 of the Administrative Law Act 1978, referred to and incorporated his oral evidence, the parties’ affidavits and submissions as a result of:
(a) the Magistrate’s reference to the material before him;
(b)the Magistrate’s reference to the plaintiff’s ‘assertions’, ‘submissions’ and ‘attack’ required the Court to have regard to the submissions and whole of the evidence to better understand the reasons;
(c)the Magistrate’s reasons was expressed in a manner which assumed knowledge by [the parties] of the material before him; and
(d)the parties’ affidavits and submissions having been filed in or provided to the court.
Legal Professional Privilege as the client and illegal conduct of the Police
The plaintiff contended that his right to a fair trial had been compromised by the following:
(a)On about 27 November 2012, police officers had executed search warrants at the ANZ Bank in Coburg and at the plaintiff’s property in Coburg North.
(b)At the time of the search the plaintiff had claimed legal professional privilege over all of the documents.
(c)The police officers had read the documents, in respect of which a claim had been made for legal professional privilege, prior to the claim being abandoned or dismissed by the court, contrary to the obligations set out in Allitt v Sullivan.[3]
[3][1988] VR 621, 626–7, 631 (Murphy, Brooking and Hampel JJ).
The plaintiff submitted that the Magistrate erred in stating that he had no evidence of the nature of the seized documents because he had the statement of the informant Detective Senior Constable Anna McIlroy which was exhibited to his affidavit in support sworn 29 September 2013 together with the statement by counsel for the Director of Public Prosecutions, at the hearing, that the claim for privilege was over the ‘work file of all sorts of receipts, payments, transactions that relate, broadly speaking, to either the body corporate building and premises, so Jim’s Lawn Mowing receipts for his own personal premises and for the body corporate, receipts for works done, things like that, but in amongst all of that are ANZ Banking records.’
The plaintiff further submitted that the Magistrate’s statement that there was no claim to legal professional privilege by the client (being the owners corporation) demonstrated that he erred because:
(a)he ignored his evidence that the plaintiff was acting as a solicitor and client; and
(b)he failed to have regard to the evidence that the police had not acted in accordance with the obligations set out in Allitt’s case as evidenced by [59]–[63] of his affidavit in support sworn 29 September 2013 or [48]–[51] and [55] of his supplementary affidavit of 18 October 2016.
The plaintiff submitted that ‘the mere fact that [the police misconduct] has occurred is sufficient ground to stay… and also [his] right to a fair trial has been compromised.’[4] He did not have to show that the documents had actually been used.
[4]Citing R v Grant [2006] QB 60, 79 [54]–[56] (Laws LJ, Dame Heather Steele and Judge Martin Stephens QC); Jago v District Court (NSW) (1989) 168 CLR 23.
Prosecution doomed to fail
The plaintiff submitted that the Magistrate erred in finding that, on the material before him, it could not be established that the prosecution was unable to prove ownership of the credit balance in the bank account from which the accused drew money for the following reasons:
(a)He failed to properly analyse the authority from the owners corporation, which was Exhibit B, because the document refers to the minutes of special general meeting of body corporate strata plan No. 1579 of 27 April 2006 which sets out his authority to deal with the moneys.
(b)He failed to consider the ANZ Bank access card, which had his name on it, and which was part of the statement of the informant, Detective Senior Constable Anna McIlroy, which was exhibit ‘EG–12’ to his affidavit in support sworn 29 September 2013.
(c)He misstated the applicability of s 73(9) with respect to theft being committed by somebody who has possession of goods, which was an error of law.
(d)He failed to consider the assertion that the plaintiff was the owner of the credit balance in the bank account on the basis of the insolvency of the owners corporation, the debt due by the owners corporation to him and the solicitors lien.
(e)He failed to address the submission that there was no appropriation for the purpose of the crime of theft.
Search Warrant illegally issued
The plaintiff submitted that the Magistrate erred in holding that ‘the court should not go behind the warrant in an application for a stay’. The basis of this submission was as follows:
(a)The reference by the Magistrate to the plaintiff’s ‘attack’ must have been to his Legal Submissions dated 1 October 2013 at [130]–[144] and the Supplementary Submissions of 18 October 2016 at [110]–[114].
(b)As a result of being exhibited to the affidavit in support sworn 29 September 2013, the search warrant was part of the evidentiary material before the Magistrate. The search warrant did not sufficiently particularise the description of things to be searched for because:
(i) There was no time limits with respect to the business records;
(ii)An ordinary person would not know what was meant by ‘any other thing relating to’ ANZ Bank accounts or NAB accounts;
(iii)Wording in the last paragraph in the description box being any document that ‘could be capable of assisting’ in the managing of the owners corporation was too broad.
The search warrant was invalid and the proceeding must be stayed because ‘to allow it to continue would be unfair to [the plaintiff] and bring the administration of justice into disrepute.’[5]
[5]Citing Pressler v Holzberger (1982) 44 A Crim R 261, 271.
Evidence of unreasonableness for collateral purpose
The plaintiff submitted that the Magistrate erred in finding that there was no evidence before him which raised the issue of unreasonableness of collateral purpose.
The basis of this submission was that the plaintiff in his supplementary submission of 18 October 2016 made submissions at [30]–[56] under the heading ‘Unreasonableness and Collateral Purpose’.
The Defendant’s Submissions
Expansion of the Record
The defendant submitted that, although the record is expanded by s 10 of the Administrative Law Act 1978, to include the reasons of the Magistrate, evidence and submissions are not incorporated by reference in the reasons unless the reference makes a material ‘and integral part’ of the reasons or order. Accordingly, the plaintiff was unable to rely upon the evidence before the Magistrate, including the exhibit, and certainly not affidavit evidence or written submissions.
Illegal conduct regarding the claim for legal professional privilege
The defendant submitted that the Magistrate made no error on the face of the record with respect to the alleged ‘illegal conduct’ of the police in relation to the claim for legal professional privilege. The basis of this submission was as follows:
(a)The Magistrate did not find that the plaintiff had made a claim of legal professional privilege.
(b)On the evidence before the Magistrate, it was not apparent that the plaintiff could have made a claim for privilege on the basis that he was acting for himself in legal proceedings because s 120 of the Evidence Act 2008 limits such privilege to documents prepared for the dominant purpose of conducting litigation.
(c)Illegality in connection with the privileged document could not, without more, result in a permanent stay. The plaintiff’s reliance upon R v Grant[6] is mistaken because it has been expressly disapproved by the Privy Council[7] and is not consistent with the authorities in Australia, which are to the effect that, prior to a grant of stay on the basis of improperly compelled information from the accused, consideration must be given to the consequences of that conduct.[8] The Magistrate made no finding that the fairness of the trial would be impaired.
(d)Before a permanent stay is ordered, it is first necessary to consider whether there is an appropriate remedy short of a permanent stay which relieves against the unfair consequences.
[6][2006] QB 60.
[7]Warren v A–G (Jersey) [2012] 1 AC 22, 35 [36].
[8]Citing X7 v The Queen (2014) 292 FLR 57, 78 [109]–[110] (Bathurst CJ, with whom Beazley P, Hidden J, Fullerton J and RA Hulme J agreed).
Prosecution foredoomed to fail
The defendant submitted that the Magistrate was not in error in refusing to stay the prosecution on the grounds that it was foredoomed to fail. The basis of this submission is as follows:
(a)The Magistrate was not aware of the evidence proposed to be led by the prosecution.
(b)The prosecutor proposed to undertake further investigation and it meant that the Magistrate would have to determine that any defects in the prosecution case were incurable.
(c)The plaintiff’s submission was based on the proposition that his evidence would be accepted by the court.
(d)The fact that the plaintiff’s evidence may be accepted does not mean the prosecution’s case must inevitably fail.
(e)The Magistrate had no material before him which would enable him to come to the conclusion that the prosecution’s case taken at its highest would ‘inevitably and manifestly’ fail.
Illegally issued search warrant
The defendant submits that the Magistrate did not err in refusing a stay on the basis that the search warrant was illegally issued. The basis of this submission was as follows:
(a)There was no material in the reasons that supported a conclusion that the search warrant was illegally issued.
(b) The search warrant was not in evidence before the Magistrate.
(c)Even if evidence was obtained as a consequence of an invalid warrant, a court would not stay proceedings; but rather consider whether the impugned evidence should be excluded.
No evidence raising the issue of reasonableness or collateral purpose
The defendant submits that the Magistrate did not err in finding that there was no evidence before him of any unreasonableness or improper purpose. The basis of this submission is as follows:
(a)The plaintiff’s argument relies upon material that was not part of the record.
(b)The plaintiff supports his submission by reference to Legal Submissions dated 1 October 2013, which were not made at the hearing before the Magistrate. Further, the plaintiff relies upon his Supplementary Submissions of 18 October 2016 which cite the documents not put in the evidence before the Magistrate.
(c)The plaintiff is required to discharge a heavy onus and the Magistrate was entirely correct to conclude that there was no evidence before him to demonstrate that the predominant purpose of the prosecution was improper.
Discretionary Considerations
The defendant submitted that, even if there was merit in the plaintiff’s submissions, the prosecution should not be stayed for the following discretionary reasons:
(a) It will lead to undesirable fragmentation of proceedings.
(b)None of the bases upon which the permanent stay for the Magistrate could have legitimately led to a stay and therefore, even if there was error by the Magistrate there would be no utility in granting relief.
Content of the record of the Magistrates’ Court
The relevant principles with respect to the content of the record of an inferior court are as follows:
(a)At common law, the record of a court is confined to the documentation that initiated the proceedings, the pleadings (if any) and the formal order or adjudication.[9]
(b)Section 10 of the Administrative Law Act 1978 (Vic) expands the content of the record to include any statement by a tribunal or inferior court (whether orally or in writing) of its reasons for a decision. The reasons for decision may include statements made by the court or tribunal during argument despite the fact that the Court later gives a further statement of reasons when announcing its decision.[10] However, statements made by a judge or tribunal, while ‘engaging in a discussion with counsel with a view to ultimately formulating [his or her] final decision’, do not form part of the record.[11]
(c)The submissions and evidence (‘extraneous material’) before the lower court are not part of the record of the court ‘unless the tribunal [deliberately] chooses to incorporate them’.[12] This qualification ‘should not be understood as having the effect that a merely introductory or incidental reference [to extraneous material] produces the consequence that the whole or part of the [extraneous material] somehow become part of ”the record” of the particular court’.[13]
(d)Extraneous material will only form part of the record if it is referred to in the record (including the reasons) ‘in a way which brings about its incorporation as an integral part of … the record’.[14]
(e)A statement in the reasons that the Court or Tribunal is satisfied or not satisfied of a fact does not incorporate the evidence relating to that fact or the entirety of the evidence, for the purpose of establishing that there was or was not evidence of that fact.
[9]Craig v South Australia (1995) 184 CLR 163, 182 (Brennan, Deane, Toohey, Gaudron and McHugh JJ) (‘Craig’s case’). It is instructive to note that a policy reason for constraining the record was to prevent certiorari being transformed into a discretionary general appeal for error of law which ‘would represent a significant increase in the financial hazards to which those involved in even minor litigation in this country are already exposed’, see Craig’s case (1995) 184 CLR 163, 181.
[10]Tural v Potter (2000) 110 A Crim R 475, 481 [18] (Eames J); Wilson v County Court of Victoria (2006) 14 VR 461, 469–70 [35] (Cavanough J).
[11]O’Connor v County Court (Vic) [2014] VSC 295 [34] (Kaye J).
[12]Craig’s case (1995) 184 CLR 163, 181 citing Public Service Board (NSW) v Osmond (1986) 159 CLR 656, 667 (Gibbs CJ); Mark Aronson, Matthew Groves and Greg Weeks, Judicial Review of Administrative Action and Government Liability (Thomson Reuters, 6th ed, 2017) [4.400].
[13]Craig’s case (1995) 184 CLR 163, 182.
[14]Ibid as applied in Matson v Racing Appeals Tribunal [2001] VSC 264 [88] (Gillard J). Also see Hoe v Vella [2009] VSC 600 [31] (Osborn J).
The final point is established by Kuek v Wellens.[15] Mr Kuek relevantly sought an order in the nature of certiorari quashing a conviction for speeding in the County Court (on appeal from the Magistrates’ Court). The trial judge dismissed the application and Mr Kuek appealed to the Court of Appeal. The relevant facts were:
(a)The prosecutor sought to prove the speed at which Mr Kuek’s vehicle was travelling by reference to a laser device and a certificate, certifying to the testing of sealing of that device, under s 83 of the Road Safety Act 1986.
(b)The County Court Judge had referred to the laser device and to the reading from the device but had made no reference to the certificate.
(c)Mr Kuek submitted that, to correct what he contended was the error in the County Court, ‘this Court should expand the record to include not only the certificate but all of the evidence below in order that he might then establish his submission that in the County Court there was no evidence of the sealing of the device before use’.[16]
[15][2002] VSCA 31 (Phillips and Buchanan JJA and O’Bryan AJA).
[16]Ibid [15].
Phillips JA (with whom Buchanan JA and O’Bryan AJA agreed) said that it was not open to the trial judge to so expand the record in that manner and stated:
Acceptance of such an argument would seem to me to permit the record to be expanded whenever it was said that the evidence below was insufficient to sustain the conclusions arrived at — and that, as I understand it, is not the law. The record did not include the certificate or, at all events, did not include all of the evidence below and, accordingly, was not such as to demonstrate the error upon which the appellant was relying.[17]
[17]Ibid [16] (emphasis in original).
An example of documents, or at least parts of a document, being incorporated by reference is provided by Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v ALS Industrial Australia Pty Ltd.[18]
[18](2015) 235 FCR 305.
In that case, the Full Court of the Federal Court considered an application by the Union to quash a decision of the Full Bench of the Fair Work Commission. The Full Court was restricted to considering the record of the Full Bench as comprising of no more than the initiating documentation, the pleadings and the adjudication.[19] The Full Court rejected the contention that, because the Full Bench’s disposition of the appeal was headed ‘Decision’, the whole of the document formed part of the ‘formal order’. The Court found the formal order was the part of the decision that stated:
… it is appropriate that we grant permission to appeal, allow the appeal, and substitute our answers to the questions posed by the parties upon the determination of the dispute.
[19]Section 10 of the Administrative Law Act 1978 not being applicable.
However, as the formal order could not be understood without reference to ‘the questions posed by the parties’ and ‘our answers’, the Court found that the questions set out in [11] of the Deputy President’s reasons and the answers set out in [19] were incorporated in the formal order because otherwise it ‘cannot be understood without reference to them’.[20]
[20]Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v ALS Industrial Australia Pty Ltd (2015) 235 FCR 305, 343 [96].
In O’Connor v County Court (Vic),[21] Kaye J considered an application for an order in the nature of certiorari in respect of the order of a County Court Judge (on appeal from the Magistrates’ Court) on a charge under s 49(1)(f) of the Road Safety Act 1986. The issue was whether the breath analysing instrument had been proven to be a ‘breath analysing instrument’ within the meaning of s 3 of the Road Safety Act 1986. The County Court judge had found that she was so satisfied on the basis of the following evidence:
(a)the specific part of the evidence of Senior Constable Bradshaw in which she stated the numbers which she observed on the rear of the apparatus;
(b)the part of the recorded conversation in which Senior Constable Bradshaw read the numbers out loud; and
(c)the certificate tendered to the court pursuant to s 58(2) of the Road Safety Act 1986.
[21][2014] VSC 295.
Kaye J found that the record of the County Court did include the three specific items of evidence to which the trial judge had referred because ‘the judge’s ruling was expressed in a manner which assumed a knowledge by the persons, to whom it was addressed, of the contents of the three items of evidence … In that way, the reference by the judge to those three items of evidence was, I consider, a shorthand method by which the judge specifically incorporated them into the reasons, and thus into the record of the court’.[22]
[22]Ibid [32].
However, Kaye J rejected the submission that the record should include other parts of the transcript and in particular parts where the judge ‘expressed particular views while discussing the matter with counsel in the course of their submissions’ because he said:
The reasons for decision, given by the judge, are self-contained, in the sense that they do not refer to, or seek to incorporate, any previous expression of opinion by the judge. Further, it is clear from the transcript of the debate between counsel and the judge, that the judge did, in part, change her mind about various matters on which she proffered her tentative view. Those passages in the transcript reveal that the judge was doing no more than any judge might do in a case, namely, engaging in a discussion with counsel with a view to ultimately formulating her final decision.[23]
[23]Ibid [34].
The exhortation of the High Court to ensure that a proceeding in the nature of certiorari is not transformed into a general appeal on a question of law requires a court, on judicial review, not to permit the qualification to the limits of the content of the record to be a mandate for this Court to ‘scour’ the evidence before the lower court.[24]
[24]Craig’s case (1995) 184 CLR 163, 180–1; Kirk v Industrial Court (NSW) (2010) 239 CLR 531, 577 [84] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ); O’Connor v County Court (Vic) [2014] VSC 295 [30] (Kaye J).
Legal principles applicable to refusal to permanently stay proceedings
In Brewer v The Queen,[25] the Court of Appeal stated with respect to a permanent stay of proceedings:
A court should only grant a permanent stay in rare or exceptional circumstances where the continuation of the proceedings would involve ‘unacceptable injustice or unfairness, or if the continuation of the proceedings would be so unfairly and unjustifiably oppressive as to constitute abuse of process’. Unacceptable injustice or unfairness can result from ‘a probable forensic disadvantage which is incurable’.[26]
[25][2017] VSCA 117 (Maxwell P, Kyrou JA and Croucher AJA).
[26]Ibid [44] (citations omitted).
In Jago v District Court (NSW),[27] Mason CJ said of the approach to an application for a permanent stay:
[T]he touchstone in every case is fairness. …
…
The factors which need to be taken into account in deciding whether a permanent stay is needed in order to vindicate the accused’s right to be protected against unfairness in the course of criminal proceedings cannot be precisely defined in a way which will cover every case. But they will generally include such matters as the length of the delay, the reasons for the delay, the accused’s responsibility for asserting his rights and, of course, the prejudice suffered by the accused. … In any event, a permanent stay should be ordered only in an extreme case and the making of such an order on the basis of delay alone will accordingly be very rare.
To justify a permanent stay of criminal proceedings, there must be a fundamental defect which goes to the root of the trial ‘of such a nature that nothing that a trial judge can do in the conduct of the trial can relieve against its unfair consequences’.
[27](1989) 168 CLR 23, 33–4 (citations omitted).
With respect to the test to be applied, particularly where the basis of the application is that the prosecution is foredoomed to fail, Lasry and T Forrest AJJA, in Little v The Queen said:
The legal principles which apply to applications for a permanent stay of criminal proceedings make it clear that a stringent test must be applied. To stay a trial as an abuse of process is an exceptional course and should be exercised ‘sparingly and with the utmost caution’. There must be ‘… a fundamental defect which goes to the root of the trial.’
In a case where the basis for the application is that the prosecution is foredoomed to fail, the test is more onerous than would apply on the resolution of a submission of no case to answer at the conclusion of a prosecution case at trial. The failure of some essential aspect of the case must be inevitable. A stay application on the basis that the prosecution is ‘foredoomed to failure’ is not an anticipatory no-case submission. It is much more than that — to be successful the applicant must demonstrate positively that the prosecution case is hopeless, plainly so and condemned to remain that way.
We consider that it involves much more than establishing a good arguable no-case submission.[28]
[28](2015) 45 VR 816, 839 [73]–[74] (citations omitted), cited with approval in DPP v Brownlie (2015) 45 VR 362, 365–6 [9]–11].
Their Honours approved the following comments of Byrne J in R v Smith:
In my view, in a case such as the present, the power to order a permanent stay of a criminal proceeding before the court should be limited to the case where it is plain beyond argument that the prosecution case suffers from some incurable vice.
Such a vice must be readily apparent and clearly fatal to the prospect of success of the prosecution.[29]
[29] (1995) 1 VR 10, 28–9 (Byrne J) (emphasis added by Lasry and T Forrest AJJA).
In Lee v The Queen,[30] the appellants were convicted of certain drug offences after transcripts of their evidence were provided to the police and the Director of Public Prosecutions in contravention of a direction by the New South Wales Crime Commission, pursuant to s 13(9) of the New South Wales Crime Commission Act 1985 (NSW), that publication of the transcripts be prohibited. The High Court said that the circumstances of the case, involving a wrongful release of evidence, could not be equated with illegally obtained evidence, and accordingly ‘the question whether such evidence should, as a matter of discretion, be admitted does not arise’.[31] However, although the High Court allowed the appeal and quashed the appellants’ convictions, it did not permanently stay the prosecution. Rather, it ordered a new trial of the appellants.[32]
[30](2014) 253 CLR 455.
[31]Ibid 473 [51].
[32]Ibid 473 [52].
Improper behaviour by authorities in obtaining evidence should not result in otherwise properly instituted proceedings being stayed as an abuse of process. If such proceedings are stayed it will usually be as a consequence of the exclusion of the tainted evidence rendering the proceedings bound to fail.[33]
[33]Ridgeway v The Queen (1995) 184 CLR 19, 40–1 (Mason CJ, Deane and Dawson JJ).
Decision
The Court Book as evidence
I reject the plaintiff’s contention that the evidence before the Magistrate included the Court Book for the following reasons:
(a)An affidavit, which is filed on the Court file, is not evidence until it is read, which, at least in Victoria, is normally done by the filing party stating that it relies on the affidavit.[34]
(b)Although the Magistrate refused to accept the affidavit that the plaintiff sought to file on the day of the hearing, the plaintiff did not read any other affidavits and the Magistrate stated expressly that he would not accept evidence by affidavit. Although he ‘disagreed’ with the Magistrate’s decision, he then chose to give oral evidence and tender certain exhibits.
[34]Manson v Ponninghaus [1911] VLR 239, 241 (Madden CJ); Barristers’ Board of Western Australia v Tranter Corporation Pty Ltd [1976] WAR 65, 67 (Brinsden J); Austress Freyssinet Pty Ltd v Marlin International Pty Ltd [2002] NSWSC 958 [9]–[10] (Barrett J).
Further, I reject the plaintiff’s submissions that:
(a)the orders of the Magistrates’ Court of 22 December 2016, that ‘Mr Giurina’s submissions to be filed and served by 21/11/16’, constituted consent by the defendant that the contents of the Court Book would form part of the evidence before the Magistrate; and
(b)the fact that an affidavit was read in the hearing before Magistrate Pithouse, in 2013, means that it is evidence in the application before Magistrate McGrane over three years later.
These submissions are both contrary to the requirements referred to in [42(a)] and were made without reference to authority.
Ground 1 - The second defendant made an error of law on the face of the record when it refused the plaintiff’s application for a permanent stay of the proceeding on the plaintiff’s ground of the plaintiff’s claim of legal professional privilege as the client himself and the illegal conduct of police in relation to this claim.
On this question, in summary, the Magistrate in his reasons said as follows:
(a)A solicitor who has possession of documents on behalf of a client may claim legal professional privilege; but the privilege remains with the client.
(b)There was no evidence of the nature of the seized documents before him.
(c)No claim for privilege was made by a solicitor’s client and neither is such client the subject of this criminal proceeding.
(d)Any breach of proper procedures by the police is not relevant to the accused.
(e)On the evidence, even if the police procedures were illegal, a permanent stay of proceedings is not justified.
In my opinion, the Magistrate made no error on the face of the record.
It is not permissible for me to have regard to evidence or submissions made. It is even clearer that this Court cannot have regard to the affidavit in support sworn 29 September 2013, which was not evidence before the Magistrate.
Even if one had regard to the evidence, in my opinion, for the following reasons, the Magistrate did not err in stating that he had no evidence of the nature of the seized documents:
(a)The statement of the informant Ms McIlroy was not in evidence. The statement was exhibited to the affidavit in support sworn 29 September 2013, which was not read into evidence.
(b)The statement by counsel for the DPP about the types of documents in respect of which there was a claim for privilege, was not evidence. Certainly it did not identify how such documents could have been subject to a claim for privilege on behalf of the plaintiff under s 120 of the Evidence Act 2008.
I also reject the plaintiff’s submission that ‘the mere fact that [illegal] conduct has occurred is sufficient a ground to stay’. The plaintiff relied upon R v Grant[35] but the proposition that prejudice could be assumed when it was not demonstrated by the evidence was rejected by the High Court in Jago v District Court (NSW).[36]
Ground 2 - The second defendant made an error of law on the face of the record when it refused the plaintiff’s application for a permanent stay of the proceeding on the plaintiff’s ground that as the circumstances of the case were such that the chances of a conviction were bleak and the case was foredoomed to fail then a permanent stay of the proceeding should be granted.
[35][2006] QB 60, 79 [54]–[56].
[36](1989) 168 CLR 23, 33, 72. Also see R v CB [2011] NSWCCA 264 [126] (McClellan CJ at CL, Buddin and Johnson JJ).
With respect to this question, I summarise the Magistrate’s reasons as follows:
(a)The credit balance in a bank account is intangible property and, pursuant to s 71(2) of the Crimes Act 1958, the property shall be ‘regarded as belonging to any person having possession or control of it, or having any proprietary right or interest. …’
(b)The person who has possession must yield to the true owner and s 71(2) and s 73(9) of the Crimes Act 1958 reflects the common law position of how theft is committed by somebody in possession.
(c)He was not satisfied, on the evidence, that the prosecution would be unable to prove ownership of the credit balance in the bank account and he noted that the plaintiff’s assertion that he was the owner was inconsistent with the name of the bank account.
(d)The question of whether the plaintiff acted dishonestly or he had the belief that he had a legal right to deprive the owner of their property can only be determined when all the evidence is before the Court.
In my opinion, the face of the record demonstrates no error by the Magistrate.
The plaintiff’s submissions rely upon submissions and evidence to which the Court cannot have regard. The plaintiff’s submissions also rely upon his affidavit in support sworn 29 September 2013, which was not part of the evidence and to which the Court cannot have reference.
Further, in my opinion, even if the Court was to consider the evidence, the submissions and the affidavit in support sworn 29 September 2013, including its exhibits, it could not be satisfied that there was a fundamental defect in the prosecution case and that it was ‘plain beyond argument that the prosecution case suffers from some incurable vice’.[37]
Ground 3 - The second defendant made an error of law on the face of the record when it refused the plaintiff’s application for a permanent stay of the proceeding on the plaintiff’s ground of the illegal issuing of the search warrant executed by police on 7 February 2013 on the plaintiff due to its form because the second defendant incorrectly concluded that in law that would require it to go behind the search warrant.
[37]R v Smith(1995) 1 VR 10, 29.
With respect to this question, the Magistrate said that:
[The plaintiff] also sought to attack the issue of the search warrant, however, in my opinion the court should not go beyond the warrant in an application for a stay.
In my opinion, the above statement demonstrates no error on the face of the record.
The plaintiff’s submissions refer to the terms of the warrant. The Court is not permitted to refer to the evidence and the search warrant was an exhibit to the affidavit in support sworn 29 September 2013, which was not in evidence. Further, I accept the defendant’s submission that the appropriate procedure would be, if the plaintiff seeks to exclude evidence on the basis that it was obtained as a consequence of an illegally issued warrant, the Magistrate would be required to hear the application to exclude the allegedly impugned evidence, make a determination as to whether such evidence was obtained improperly and exercise the discretion pursuant to s 138 of the Evidence Act 2008.
Having considered all of the evidence, the Magistrate would not have been in a position to determine, on this application, that the prosecution should have been permanently stayed.
Ground 4 - The second defendant made an error of law on the face of the record when it concluded that there was no evidence before it which raised the issue of unreasonableness or collateral purpose.
With respect to this question, the Magistrate said only ‘There is simply no evidence before me which raises the issue of unreasonableness or collateral purpose’.
In my opinion, there is no error which can be discerned on the face of the record with respect to the issue of unreasonableness or collateral purpose. The plaintiff’s submissions require that I ‘scour’ the evidence to establish that the Magistrate’s statement is incorrect. The statement that there is no evidence in support of a proposition does not incorporate into the record all of the evidence for the purpose of examining whether the statement is true, any more than a statement by a court or tribunal that it is satisfied of a fact permits the Court to examine all of the evidence for the purpose of establishing that there was no, or insufficient, evidence of the facts so found.[38]
[38]Kuek v Wellens [2002] VSCA 31 [15]–[16] (Phillips JA, with whom O’Bryan AJA agreed).
In fact, the plaintiff submits that the Court should have regard to ‘relevant evidence on point’ referenced in his submissions, which was not in evidence before the Magistrate.
Orders
Accordingly, I find that the plaintiff has not demonstrated any error by the Magistrate on the face of the record and accordingly I would dismiss this proceeding.
In the circumstances, it is not necessary that I consider whether or not to exercise the inherent jurisdiction of this Court to control inferior courts by staying the prosecution below.
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