JUDGE:	Ginnane J
WHERE HELD:	Melbourne
DATE OF HEARING:	6 February 2020
DATE OF JUDGMENT:	3 April 2020
CASE MAY BE CITED AS:	Grabski v Beier
MEDIUM NEUTRAL CITATION:	[2020] VSC 156

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JUDICIAL REVIEW – Criminal charges – Convictions – De novo appeal to County Court - Re-hearing requirements – Credibility key issue – Complainants and accused not giving oral evidence on appeal – Tendering of video and audio recordings and transcripts of Magistrates’ Court hearing as evidence in de novo appeal – Whether Judge’s reasons adequate – Whether adequate consideration of plaintiff’s evidence – Whether appeal validly conducted – Whether agreement as to facts – Whether waiver of rules of evidence – Whether plaintiff could challenge agreed appeal hearing procedure - Jurisdictional errors – Evidence Act 2008 ss 190, 191; Criminal Procedure Act 2009 s 256

EVIDENCE – County Court appeal – Tender of video and audio recordings and transcript of Magistrates’ Court proceeding – Whether waiver of rules of evidence – Whether agreement as to facts – Evidence Act 2008 ss 190, 191

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr C Carr	Furstenberg Law
For the First Defendant	Mr B L Sonnet	Office of Public Prosecutions

HIS HONOUR:

The plaintiff, Mr Richard Grabski, seeks judicial review of orders of the County Court by which he was convicted of two counts of an indecent act with a 16 or 17 year old child under his care, supervision or authority in breach of s 49(1) of the Crimes Act 1958 (‘Crimes Act’).[1] The charges were heard in the Magistrates’ Court and following his conviction and sentence, which included four months imprisonment and a community corrections order, he appealed to the County Court where he was again convicted, but sentenced to a community corrections order without a term of imprisonment.
[1]Being the offence of ‘indecent act with 16 or 17 year old child’. Since repealed by Crimes Amendment (Sexual Offences) Act 2016 s 16.

I shall refer to the first defendant, who was the informant, as the defendant.

The plaintiff seeks judicial review arguing that the Judge made jurisdictional errors because the County Court Judge’s reasons were not adequate, that he did not adequately consider the complainants’ and his evidence by applying the criminal burden of proof and because of the appeal procedure adopted. The credibility of the main witnesses was a critical issue, none of them gave oral evidence, but the parties relied on a video and audio recordings and the transcript of the Magistrates’ Court hearing.

In my opinion, Mr Grabski is entitled to judicial review remedies because I consider that he has established the grounds of inadequate reasons and that the appeal procedure adopted, although by consent, was not that required by the legislation.

Background

The plaintiff…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Grabski v Beier

Details

AGLC: Grabski v Beier [2020] VSC 156
Case: [2020] VSC 156
Decision Date: 3 April 2020

CaseChat Overview and Summary

In the case of Grabski v Beier, the County Court of Victoria was called upon to review criminal convictions made in the Magistrates’ Court. The matter involved a de novo appeal, where the County Court re-examined the case with a fresh perspective, without being bound by the previous findings. The appeal centred on the adequacy of the Judge's reasons, the consideration of the plaintiff's evidence, and whether the appeal was validly conducted. The court also had to determine if there was an agreement as to the facts of the case, if the rules of evidence were waived, and if the plaintiff could challenge the agreed-upon procedure for the appeal hearing.

The legal issues before the court included whether the tender of video and audio recordings and the transcript of the Magistrates’ Court proceedings could serve as evidence in the County Court appeal. Additionally, the court had to consider if the evidence act and criminal procedure act provisions allowed for such evidence and if there were any jurisdictional errors. The central question was whether the appeal was conducted in a manner that adhered to legal standards, particularly regarding the consideration of the plaintiff's evidence and the adequacy of the Judge's reasons.

The court determined that the appeal was validly conducted and that the tendered evidence was appropriately considered. The Judge's reasons were deemed adequate, and there was an implicit agreement as to the facts. The court found no jurisdictional error and concluded that the plaintiff could not challenge the appeal hearing procedure. The appeal was dismissed, and the original convictions were upheld.

No further orders were made beyond the dismissal of the appeal and the upholding of the original convictions.

Orders