Hamilton v Pickering
[2014] VSC 399
•26 August 2014
| 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 set aside.
Relevant provisions of the Act and the County Court Criminal Procedure Rules
Part 6.1 of the Act is headed ‘Appeal from Magistrates’ Court to County Court’ and comprises ss 254 to 271.
Section 254 of the Act provides that a person convicted of an offence by the Magistrates’ Court may appeal to the County Court against the conviction and sentence or the sentence alone.
Section 255(1) of the Act provides that an appeal under s 254 is commenced by filing a notice of appeal with a registrar of the Magistrates’ Court. Section 255(4) requires that a notice of appeal must include ‘a statement in the form prescribed by the rules of the County Court and signed by the appellant to the effect that the appellant is aware that on the appeal the County Court may impose a sentence more severe than that sought to be appealed.’ Section 255(5) provides that a notice of appeal must ‘include an undertaking signed by the appellant in the manner prescribed by the rules of the County Court … to appear at the County Court for the duration of the appeal’. Section 255(6) provides that, before accepting a notice of appeal, a registrar of the Magistrates’ Court must give to the appellant ‘a notice in the form prescribed by the rules of the County Court to the effect that on the appeal the County Court may impose a sentence more severe than that sought to be appealed against’.
Pursuant to s 256 of the Act, an appeal under s 254 is conducted as a rehearing and the County Court has power to set aside the sentence of the Magistrates’ Court and to ‘impose any sentence which the County Court considers appropriate and which the Magistrates’ Court imposed or could have imposed’.[3] Section 256(3) provides:
On the hearing of an appeal under section 254, the County Court must warn the appellant, as early as possible during the hearing, that the appellant faces the possibility that a more severe sentence may be imposed than that imposed by the Magistrates' Court.
[3]Act s 256(2)(b).
Sections 267 and 268 of the Act relevantly provide:
267 Appellant's failure to appear
(1)If an appellant (other than the DPP) fails to appear at the time listed for the hearing of the appeal, the County Court may—
(a) strike out the appeal; or
(b)adjourn the proceeding on any terms that it considers appropriate.
…
(3)The County Court, at any time, may set aside an order striking out an appeal because of the failure of the appellant to appear, if the appellant satisfies the court that the failure to appear was not due to fault or neglect on the part of the appellant.
…
268Respondent's failure to appear on appeal by DPP
(1)If a respondent to an appeal under section 257 or 260 by the DPP fails to appear at the time listed for the hearing of the appeal, the County Court—
(a)may adjourn the proceeding on any terms that it considers appropriate; or
(b)if satisfied that notice of the appeal has been given in accordance with section 258 or 261, as the case may be, may hear and determine the appeal in the absence of the respondent.
Note
The County Court cannot impose a sentence that requires the consent of the respondent, for example a community correction order, in the absence of the respondent. …
Part 8.1 of the Act is headed ‘Conduct of Proceeding’ and comprises ss 328 to 337.
Section 328 of the Act relevantly provides that ‘[a] party to a criminal proceeding may appear … personally … or … by a legal practitioner’. Sections 329 and 330 are critical to the issue in this proceeding. They relevantly provide:
329 When accused etc. is required to appear at hearing
…
(2)A party to an appeal who was the accused in the criminal proceeding to which the appeal relates must appear at every hearing in the appeal, unless otherwise provided by this Act or the rules of court.
(3) The court may excuse a person from appearing at a hearing.
Notes
1 See section 328 for the ways in which an accused may appear.
2Division 3 of Part IIA of the Evidence (Miscellaneous Provisions) Act 1958 permits the appearance of an accused before the court by audio visual link in certain circumstances.
330 When accused etc. is required to attend hearing
…
(2)A party to an appeal who was the accused in the criminal proceeding to which the appeal relates must attend a hearing in the appeal if—
(a)this Act or the rules of court require the attendance of the party at the hearing; or
(b)the party has been remanded in custody or granted bail to attend the hearing; or
(c)the court requires the attendance of the party at the hearing.
(3) The court may excuse a person from attending a hearing.
(4)If a person fails to attend when required under subsection (1)(a), (1)(b), (2)(a) or (2)(b), the court may issue a warrant to arrest the person.
(5)If a person fails to attend when required under subsection (1)(c) or (2)(c), the court may issue a warrant to arrest the person if the court is satisfied that the person has had reasonable notice of the requirement to attend.
Notes
1 Section 3 defines attend as to be physically present in court.
2Section 100(2) provides for the attendance of an accused at hearings in a committal proceeding.
3Section 246 provides for the attendance of an accused at hearings conducted under Chapter 5 (Trial on Indictment).
Section 3 of the Act contains the following relevant definitions:
In this Act —
appear, in relation to a party, has the meaning given in section 328;
attend, in relation to a person, means be physically present in court or, if authorised to do so under Division 2 or 3 of Part IIA of the Evidence (Miscellaneous Provisions) Act 1958, appear or be brought before the court by audio visual link.
Rule 3.02 of the County Court Criminal Procedure Rules 2009 (‘Rules’) provides that a notice of appeal and undertaking to proceed under s 255 of the Act must be in Form 3A. The undertaking in that form is an undertaking to ‘appear at the County Court sitting at [place] which is located at [address] on [date] at [time] a.m./p.m. and to appear at the County Court for the duration of the appeal.’
In the present case, the appellant signed a notice of appeal in the prescribed form pursuant to which he undertook to ‘appear’ at the County Court on 30 August 2013.
Parties’ submissions
The plaintiff submitted that, in accordance with the definition of ‘appear’ in s 3 of the Act, read with s 328, he complied with the obligation in s 329(2) by appearing at the hearing on 30 August 2013 by counsel. According to the plaintiff, the obligation to attend in s 330(2) did not apply because there was nothing in the Act or the Rules which required him to do so. The scheme of the Act was said to be capable of being given effect if the statutory definition is applied according to its terms and therefore it was not permissible to interpret the word ‘appear’ as meaning ‘attend’. On this basis, the judge made a jurisdictional error by misconstruing the Act and therefore the Impugned Order should be set aside.
The informant submitted that, notwithstanding that the defined term ‘appear’ is in s 329(2) of the Act, when read as a whole the Act indicates an intention that an appellant in the plaintiff’s position must attend the hearing of an appeal within the meaning of s 330(2)(a). The informant relied on four propositions in support of this contention.
The informant’s first proposition was that the phrase ‘fails to appear’ in s 267(1) of the Act must mean ‘appear personally’ as otherwise the exception for the DPP would not be necessary. As the DPP cannot physically appear in person in all DPP appeals, the exception makes it clear that a DPP appeal cannot be struck out if the DPP appears through counsel rather than personally. The fact that, unlike s 268, s 267 does not contain a note about the convicted person being sentenced in his or her absence indicates that this course is not available under s 267 and that, accordingly, personal attendance is required by that section.
The informant’s second proposition was that s 268(1) of the Act indicates that the phrase ‘fails to appear’, when read in conjunction with the phrase ‘in the absence of the respondent’, is intended to refer to an appearance in person. The informant submitted that the note to s 268(1) is predicated on personal appearance being necessary because it draws attention to the fact that certain types of sentences cannot be imposed in the absence of the respondent.
The informant’s third proposition was that it can be inferred from the requirement in s 256(3) of the Act that the County Court must warn an appellant of the possibility that a more severe sentence may be imposed, that the appellant must be present at the hearing to receive the warning. The informant submitted that the purpose of the warning is to enable the appellant to elect whether to proceed with the appeal and that that purpose would be undermined if the warning were communicated to the appellant indirectly by his or her counsel. The informant relied upon Tassell v Hayes[4] where, in the context of the phrase ‘inform [the accused]’ in s 122 of the Justices Act 1921 (SA), the High Court held that the accused must be present when the court informs him or her whether it proposes to deal with his or her case in a summary way.
[4](1987) 163 CLR 34, 42 (‘Tassell’).
The informant’s fourth proposition was that the undertaking in Form 3A of the Rules requires personal attendance and thus the Rules require the appellant to ‘attend’ for the purposes of s 330(2)(a) of the Act.
Decision
It is axiomatic that, where a statute defines a term that is used in the statute, the term must be given its defined meaning. However, that general principle is not absolute. A defined meaning can be displaced where a provision evinces a contrary intention even if the definition is not expressly stated to be subject to a contrary intention.[5]
[5]Transport Accident Commission v Treloar [1992] 1 VR 447, 449.
There are two key questions in the present case. The first question is whether, for the purposes of s 329(2) of the Act, the Act, when read as a whole, evinces an intention that the word ‘appear’ should not be interpreted in accordance with the defined meaning but rather should be read as requiring personal attendance. The second question is whether, for the purposes of s 330(2)(a), there are any provisions of the Act or the Rules that required the plaintiff to attend the hearing on 30 August 2013 in person. These questions necessitate an examination of the contextual matters upon which the informant’s four propositions are based.
Of the informant’s four propositions, only the third has any force. It is clear that the purpose of s 256(3) of the Act is not simply to ensure that the appellant is aware of the risk that the County Court may impose a more severe sentence, as that purpose is already achieved by the notice that the appellant receives from the registrar of the Magistrates’ Court under s 255(6). What is less clear is whether the purpose of s 256(3) is:
(a) to ensure that the appellant is given a reminder about that risk during the hearing, whether by being in court and hearing the judge’s warning or by being informed of that warning by counsel if the appellant is not present during the hearing; or
(b) to ensure that the appellant receives in person a warning that is clothed with the authority of the judge’s office and that has the effect of immediately and directly bringing home to the appellant that an important choice must be made whether to proceed with the appeal — and take the risk of being subjected to a more severe sentence — or to eliminate that risk by abandoning the appeal.
If the purpose of s 256(3) of the Act is as set out at [24(b)] above, that purpose cannot be achieved if the appellant is absent from the hearing and the judge’s warning is communicated to the appellant by his or her counsel.
It is arguable that, if Parliament had intended that the judge’s warning could be communicated indirectly to an appellant who is not present at the hearing, s 256(3) of the Act would not have used the imperative language ‘the County Court must warn the appellant’ but would have been worded differently. For example, the section could have stated that the County Court must be satisfied that the appellant is aware that he or she faces the possibility that a more severe sentence may be imposed.[6]
[6]This is the approach adopted in s 132 of the Evidence Act 2008.
It is also arguable that, while Tassell dealt with the word ‘inform’ rather than ‘warn’ and a different statutory context, the reasoning of the majority (Mason, Wilson and Dawson JJ) in that case is relevant to the warning required by s 256(3) of the Act. Their Honours said:
[W]e think that s 122(4) supports an implication that a defendant must be present in person at the hearing of a minor indictable offence. It requires the court to inform the defendant, at the completion of the case for the prosecution, whether or not it proposes to deal with the case in a summary way. The decision is one which may have serious consequences touching the liberty of a defendant and require decisions to be made by him concerning the further conduct of the proceedings. There should not be imputed to the legislature an intention that such a decision should be announced in the absence of the defendant and without his personal knowledge. The magistrate is obliged to inform the defendant.[7]
[7]Tassell (1987) 163 CLR 34, 42 (emphasis in original).
The fact that the Act requires that an appellant must receive two warnings of the risk of being sentenced to a more severe sentence serves to emphasise the importance that the Act places on the sentencing process to which a convicted person is subject in an appeal. As a more severe sentence can be imposed, it would make sense to require the convicted person to be in court to receive the judicial warning and to be sentenced in person. Personal presence in court during a sentence is not only a prerequisite for sentences for which an appellant’s consent is required[8] but it is also important for sentences which involve immediate incarceration.
[8]See the note to s 268(1) of the Act.
The above statutory objectives would arguably be more difficult to achieve if the word ‘appear’ in ss 267, 268 and, in turn, 329(2) of the Act were given a meaning other than ‘appear in person’.
Contrary to the plaintiff’s submission, the informant’s preferred interpretation will not cause undue inconvenience to parties because the County Court may excuse a person from attending a hearing.[9] In the present case, counsel for the plaintiff at the County Court hearing could have sought an order that the plaintiff be excused from attending the hearing rather than seeking an adjournment of the hearing. An order excusing the plaintiff’s attendance would have avoided the inconvenience of an adjournment, which appears to be the reason why the judge refused the adjournment. It is not clear why such an order was not sought.
[9]Act ss 329(3), 330(3).
The informant’s first proposition is misconceived. The words ‘[i]f an appellant (other than the DPP) fails to appear’ in s 267(1) of the Act simply mean that the section applies only where a convicted person is the appellant and does not apply where the DPP is the appellant. This is made clear by the references in the other subsections to imprisonment, custody, bail and the appellant’s undertaking to proceed with the appeal; these references cannot apply to the DPP. Accordingly the exception for the DPP has no bearing on the meaning of the phrase ‘fails to appear’.[10] Likewise, the absence of a note to s 267 along the lines of the note to s 268(1) is not surprising. It is only natural that the consequences of a convicted person failing to appear in his or her own appeal will be different from those pertaining to an appeal against sentence by the DPP.[11]
[10]Cf Act s 79.
[11]The informant’s reliance on s 322 of the Act during oral argument is misplaced because that section — which deals with appeals to the Court of Appeal — refers to the imposition of a sentence where the convicted person ‘does not attend the hearing of an appeal’. Further, an appeal to the Court of Appeal is not conducted as a rehearing.
The informant’s second proposition lacks substance. The phrases ‘fails to appear’ and ‘the absence of the respondent’ in s 268(1) of the Act are compatible with the statutory definition of ‘appear’ because if the respondent fails to appear personally or by counsel, the respondent will necessarily be ‘absent’. Further, the note to s 268(1) merely records that some types of sentences cannot be imposed unless the respondent is present to consent to the sentence.
The informant’s fourth proposition is devoid of any merit. As a general rule, a word or phrase that is defined in a statute must be interpreted in accordance with that definition where it appears in a subordinate instrument. This is necessary to avoid inconsistency between the statute and the subordinate instrument. Accordingly, if, properly construed, the word ‘appear’ in s 255 of the Act includes ‘appear by a legal practitioner’, that meaning would also apply to Form 3A of the Rules. In any event, like the Act, the Rules draw a clear distinction between ‘appear’ and ‘attend’.[12]
[12]For example, in contrast to Form 3A, the summons in Form 2B requires the accused to ‘attend at the County Court at [place] on [date] at [time] a.m./p.m.’ See also the forms of subpoena and r 5.08.
In my opinion, although the informant’s third proposition has some force, it cannot overcome the unambiguous distinction between the defined terms ‘appear’ and ‘attend’ and the deliberate selective use of those defined terms in different provisions of the Act.
The most directly relevant provisions in the present case are ss 329(2) and 330(2) of the Act. Section 329(2) required the plaintiff to ‘appear’ at the hearing on 30 August 2013. The first note to s 329, which forms part of the section,[13] expressly refers to ‘the ways in which an accused may appear’ in s 328, which immediately precedes s 329. Under s 328, one of ‘the ways in which an accused may appear’ is ‘by a legal practitioner’. It follows that, as the plaintiff was a party to whom s 329(2) applied, his appearance at the hearing on 30 August 2013 by a legal practitioner complied with the obligation to appear in that section.
[13]Interpretation of Legislation Act 1984 s 36(3A).
It is true, as the informant pointed out, that s 328 applies to a ‘party to a criminal proceeding’ and that s 329 draws a distinction between ‘the criminal proceeding against the accused’ and ‘an appeal … in the criminal proceeding to which the appeal relates’. However, any doubt about whether the provisions of s 328 apply to s 329(2) is dispelled by the first note to s 329. Further, s 3 makes it clear that the definition of ‘appear’, which takes its meaning from s 328, applies ‘[i]n this Act’, that is, in the Act as a whole.
Section 330(2) of the Act could only have the effect of requiring the plaintiff to attend the hearing on 30 August 2013 if one of paras (a), (b) or (c) applied to him. Paragraphs (b) and (c) did not apply to the plaintiff because he had not been remanded in custody, was not on bail and the Court did not make any order requiring him to attend the hearing. The question is whether the Act or the Rules required the plaintiff to attend.
As discussed above, the provision that directly determined the plaintiff’s obligations in relation to the hearing on 30 August 2013 is s 329(2) of the Act. That section did not expressly ‘require the attendance’ of the plaintiff and could only have that effect if, by reference to the informant’s four propositions, the word ‘attend’ is substituted for the word ‘appear’ in s 329(2). Such redrafting of s 329(2) cannot be undertaken in the face of the clear distinction in the Act between ‘appear’ and ‘attend’.
The notes to s 330 of the Act expressly refer to the definition of ‘attend’ in s 3 and draw attention to ss 100(2) and 246 which require the personal attendance of an accused at hearings in a committal proceeding and at a trial on indictment, respectively. Section 55(4) also requires the accused to attend all contest mention hearings. These provisions indicate that where the Act intends to impose an obligation of personal attendance, it does so using clear and unambiguous language. No provision of the Act clearly and unambiguously required the plaintiff to personally attend the hearing on 30 August 2013. Further, for the reasons already discussed, such an obligation cannot be inferred from ss 256(3), 267(1) or 268(1).
The conclusion that I have reached does not undermine the scheme of the Act because one component of that scheme is a careful delineation of the circumstances in which a person is required to physically attend a hearing and the circumstances in which he or she is not so required. While it may be preferable for a convicted person to be physically present to receive the warning required under s 256(3) and to be sentenced, the Act does not compel this in all cases. Where a judge forms the view that a convicted person should be present at a hearing, the judge can make an order compelling attendance.
It follows from the above that the plaintiff did not ‘fail to appear’ at the hearing on 30 August 2013 and that the County Court did not have the power under s 267(1)(a) of the Act to strike out the plaintiff’s appeal.
The informant submitted that, in the event that this Court concluded that the Impugned Order exceeded the powers of the County Court,[14] this Court should not grant any relief to the plaintiff as a matter of discretion because the plaintiff has an alternative statutory remedy. That remedy was said to be the right under s 267(3) of the Act to apply to the County Court to set aside the Impugned Order.
[14]As the error of law made by the County Court appears on the face of the record, it is not necessary for me to decide whether it constitutes jurisdictional error. Under s 10 of the Administrative Law Act 1978, the County Court’s oral reasons form part of the record of the Impugned Order.
The informant’s submission must be rejected. Section 267(3) of the Act could only apply if the County Court were satisfied that the plaintiff’s ‘failure to appear was not due to fault or neglect’ on his part. As the plaintiff did not fail to appear, s 267(3) does not apply. There are no discretionary considerations which warrant denying the plaintiff relief.
Charter of Human Rights and Responsibilities
The parties did not make any submissions on whether the right to freedom of movement in s 12 of the Charter of Human Rights and Responsibilities was engaged and what effect, if any, the Charter had on the issue in this proceeding. Accordingly, I have not taken the Charter into account. I note, however, that the plaintiff’s preferred interpretation of the Act is more compatible with s 12 of the Charter than that of the informant.
Proposed order
For the reasons set out above, the Impugned Order will be set aside and the proceeding will be remitted to the County Court for rehearing. I will hear further from the parties on the precise form of order to be made by this Court and on the question of costs.
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