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Grewal v Di Camillo

Grewal v Di Camillo

Case [2014] VSC 640 17 December 2014

Natural Justice & Procedural Fairness

Judicial Review

Administrative Law

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IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

JUDICIAL REVIEW AND APPEALS LIST

S CI 2014 02097

PARAMDEEP GREWAL

Plaintiff

ALICIA DI CAMILLO

THE COUNTY COURT OF VICTORIA

First Defendant

Second Defendant

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JUDGE:	McDONALD J
WHERE HELD:	Melbourne
DATE OF HEARING:	3 December 2014
DATE OF JUDGMENT:	17 December 2014
CASE MAY BE CITED AS:	Grewal v Di Camillo
MEDIUM NEUTRAL CITATION:	[2014] VSC 640 First Revision: 17 December 2014

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JUDICIAL REVIEW — Conviction and fines for unlawful assault and use of carriage service contrary to s 474.17(1) of Criminal Code Act 1995 (Cth) — No opportunity for plea in mitigation — Denial of procedural fairness — Adequacy of reasons where no express consideration of mental element of offence — Grounds for ultimate conclusion disclosed by reasons for judgment.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr G Nash QC With Mr D Hancock	Chester Metcalfe
For the First Defendant	Mr P Kidd SC	Office of Public Prosecutions

HIS HONOUR:

Introduction

On 22 December 2011, the plaintiff was charged with the following offences:

(1)The plaintiff, at Melbourne, on 15 July 2011, did stalk another person, namely Anna Kalisperis, in that the plaintiff did follow the victim or another person.
Such offence is contrary to s 21A(1) of the Crimes Act 1958.
(2)The plaintiff, at Springvale, on 23 July 2011, did, without lawful excuse, recklessly cause injury to Anna Kalisperis.
Such offence is contrary to s 18 of the Crimes Act 1958.
(3)The plaintiff, at Springvale, on 23 July 2011, did unlawfully assault Anna Kalisperis.
Such offence is contrary to s 23 of the Summary Offences Act 1966.
(4)The plaintiff, at various locations in Victoria, on 26 July 2011, did stalk another person, namely Anna Kalisperis, in that the appellant did telephone, send electronic messages to, or otherwise contact, the victim or any other person.
Such offence is contrary to s 21A(1) of the Crimes Act 1958.
(5)The plaintiff, at a large number of various locations in Victoria, the last being in Western Gardens, Victoria, on 26 July 2011, did use a carriage service in a manner in which a reasonable person would regard as being harassing, namely Kalisperis.
Such offence is contrary to s 474.17(1) of the Commonwealth Criminal Code Act 1995.
(6)The plaintiff, at various locations in Victoria, on 26 July 2007, did use a carriage service in a manner in which a reasonable person would regard as being offensive, namely Kalisperis.
Such offence is contrary to s 474.17(1) of the Commonwealth Criminal Code Act 1995.[1]

[1]Charge Sheet and Summons filed 22 December 2011 in the Magistrates’ Court of Dandenong.

On 14 March 2013, at the Dandenong Magistrates’ Court, the plaintiff was found guilty in relation to each charge. In relation to Charges 1, 2, 3 and 4, he was convicted and sentenced to a Community Corrections Order involving unpaid community work, supervision, treatment and rehabilitation and in particular, a Men’s Behaviour Change Program. In relation to Charges 5…

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 Grewal v Di Camillo

Details

AGLC: Grewal v Di Camillo [2014] VSC 640
Case: [2014] VSC 640
Decision Date: 17 December 2014

CaseChat Overview and Summary

In Grewal v Di Camillo, the applicant, a former Australian immigration detention centre detainee, sought judicial review of his criminal conviction and fines for unlawful assault and using a carriage service contrary to section 474.17(1) of the Criminal Code Act 1995 (Cth). The applicant contended that he was denied procedural fairness in his criminal proceedings, as he was not provided with an opportunity to plead in mitigation, and the reasons provided for his conviction did not adequately consider the mental element of the offence. The court was required to determine whether the applicant's right to procedural fairness had been breached and whether the reasons provided for the conviction were adequate.

The court found that the applicant's right to procedural fairness had been breached as he was not provided with an opportunity to plead in mitigation. However, the court held that the adequacy of the reasons provided for the conviction was not a bar to the applicant's application for judicial review. The court found that the reasons for judgment disclosed the grounds for the ultimate conclusion reached by the primary judge, and the failure to expressly consider the mental element of the offence did not affect the adequacy of the reasons. The court held that the reasons provided for the conviction were adequate, and the applicant's appeal against conviction and sentence should be dismissed.

The court's decision was that the applicant's right to procedural fairness had been breached, but the adequacy of the reasons provided for the conviction was not a bar to the applicant's application for judicial review. The court found that the reasons for judgment disclosed the grounds for the ultimate conclusion reached by the primary judge, and the failure to expressly consider the mental element of the offence did not affect the adequacy of the reasons. The court held that the reasons provided for the conviction were adequate, and the applicant's appeal against conviction and sentence should be dismissed. The court dismissed the application for judicial review and affirmed the applicant's conviction and fines.

Orders