Hamilton v Pickering - [2014] VSC 399

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST

S CI 2013 5383

SCOTT HAMILTON	Plaintiff
v
DEAN PICKERING and THE COUNTY COURT OF VICTORIA	Defendants

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JUDGE:	KYROU JA
WHERE HELD:	Melbourne
DATE OF HEARING:	20 August 2014
DATE OF JUDGMENT:	26 August 2014
CASE MAY BE CITED AS:	Hamilton v Pickering
MEDIUM NEUTRAL CITATION:	[2014] VSC 399
DECISION UNDER REVIEW:	Hamilton v Pickering (County Court, Judge Maidment, 30 August 2013)

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CRIMINAL LAW — Appeal to County Court against conviction and sentence imposed by Magistrates’ Court — Whether appellant required to attend the hearing of appeal — Whether appearance by counsel sufficient — Personal attendance not required — Criminal Procedure Act 2009 ss 254, 255, 256, 267, 268, 328, 329, 330 and definitions of ‘appear’ and ‘attend’ in s 3 — County Court Criminal Procedure Rules 2009 r 3.02, Form 3A.

ADMINISTRATIVE LAW — Application for judicial review — Order of judge of County Court striking out appeal against conviction and sentence imposed by Magistrates’ Court — Absence of power to make order — No discretionary considerations warrant dismissal of application — Application granted.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr S Hardy	Thexton Lawyers
For the First Defendant	Mr C Carr	Office of Public Prosecutions
For the Second Defendant	No appearance

HIS HONOUR:

Introduction and summary

In this judicial review proceeding, the plaintiff seeks relief in respect of an order made by a judge of the County Court on 30 August 2013 striking out his appeal to that Court from a conviction and sentence imposed by the Magistrates’ Court under the Road Safety Act 1986 (‘Impugned Order’).[1]
[1]The plaintiff was convicted of several driving offences. He was fined and his driver’s licence was cancelled.

The plaintiff did not attend the County Court at the hearing of his appeal but he was represented by counsel. The judge decided that s 329(2) of the Criminal Procedure Act 2009 (‘Act’) required the plaintiff to attend the hearing in person and, after refusing counsel’s application for an adjournment, the judge made the Impugned Order purportedly under s 267(1) of the Act.

The issue in this proceeding is whether the judge was correct in his interpretation of s 329(2) of the Act. Resolution of that issue involves a consideration of the definitions of ‘appear’ and ‘attend’ in s 3 and whether the Act, read as a whole, evinces an intention that a person who appeals to the County Court from a conviction or sentence imposed by the Magistrates’ Court must attend the hearing of the appeal in person.

The first defendant is the informant. The second defendant is the County Court which, in accordance with the principles in R v Australian Broadcasting Tribunal; Ex parte Hardiman,[2] did not take any part in the proceeding.
[2](1980) 144 CLR 13, 35–6.

For the reasons set out below, the judge erred in his interpretation of the Act. The Impugned Order will be…

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 Hamilton v Pickering

Details

AGLC: Hamilton v Pickering [2014] VSC 399
Case: [2014] VSC 399
Decision Date: 26 August 2014

CaseChat Overview and Summary

Hamilton appealed against his conviction and sentence imposed by the Magistrates’ Court to the County Court, seeking to challenge both the conviction and the sentence. The appeal was heard in his absence as he had elected not to attend the hearing. His legal representative appeared on his behalf. Pickering, the respondent, argued that Hamilton should have been personally present at the hearing and sought an order striking out the appeal due to his absence.

The legal issues before the court were whether an appellant is required to personally attend the hearing of an appeal in the County Court and whether the presence of counsel is sufficient in lieu of personal attendance. The court also needed to determine whether the judge had the power to strike out the appeal on the basis of the appellant’s absence.

The court held that an appellant is not required to personally attend the hearing of an appeal in the County Court. It found that the presence of counsel was sufficient and that the statutory provisions, including the Criminal Procedure Act 2009, did not mandate personal attendance. The definitions of ‘appear’ and ‘attend’ within the statute supported this interpretation. The court also held that the judge did not have the discretion to strike out the appeal on the basis of the appellant’s absence. The County Court Criminal Procedure Rules 2009 and relevant case law did not support such an order.

The court allowed the appeal and quashed the order of the County Court judge striking out the appeal against conviction and sentence. The matter was remitted to the County Court for the hearing of the appeal on its merits.

Orders