Jeffrey v Schubert - [2012] VSC 144

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 05393 of 2011

DAYLE WARREN JEFFREY	Plaintiff
v
DETECTIVE SENIOR CONSTABLE JASON SCHUBERT	First Defendant
and
THE MAGISTRATES' COURT OF VICTORIA	Second Defendant

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JUDGE:	J FORREST J
WHERE HELD:	Melbourne
DATE OF HEARING:	16 April 2012
DATE OF JUDGMENT:	27 April 2012
CASE MAY BE CITED AS:	Jeffrey v Schubert & anor
MEDIUM NEUTRAL CITATION:	[2012] VSC 144

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CRIMINAL PROCEDURE – Application for judicial review under Order 56 of the Supreme Court (General Civil Procedure) Rules 2005 (Vic) – Jurisdictional error – Whether magistrate was guilty of jurisdictional error when deciding not to give sentence indication – Power of magistrate to give sentencing indication in case of a committal – Criminal Procedure Act2009 (Vic), s 60.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr J Hannebery	Stephen Andrianakis & Associates
For the First Defendant	Mr J D McArdle QC	Office of Public Prosecutions Victoria

HIS HONOUR:

Introduction

The plaintiff, Mr Dayle Jeffrey, seeks judicial review of the decision of a magistrate not to give a sentence indication in conformity, so it is argued, with s 60 of the Criminal Procedure Act2009 (Vic).[1] Mr Jeffrey also seeks orders in the nature of mandamus to compel the Magistrate to consider the exercise of such power.
[1]“CPA”.

At the hearing of this application, the dispute between Mr Jeffrey and the informant, Mr Schubert, came down to one issue: whether the Magistrate at the commencement of the hearing of Mr Jeffrey’s committal for two indictable offences had the power to give such a sentence indication, absent a decision by the Magistrates’ Court that the charges were to be determined summarily.[2]
[2]Section 29 of the CPA.

It was accepted by senior counsel for Mr Schubert that a fair reading of the Magistrate’s reasons demonstrates that her Honour concluded that she did not have the power to give a sentence indication unless the court was seized with summary jurisdiction. It was also accepted by counsel that if her Honour was wrong on this count then such a conclusion amounted to jurisdictional error.[3]
[3]See Kirk v Industrial Court NSW (2010) 239 CLR 531 [72], Craig v South Australia (1995) 184 CLR 163, 200.

The resolution of this application is dependent upon the construction of s 60 and particularly whether effect is to be given to its apparent meaning or whether such meaning should be qualified by the statutory context of the section within the CPA.

Ultimately, I have concluded that notwithstanding the wording of s 60, the power to provide a sentence indication is only engaged where the Magistrates’ Court is empowered to exercise summary jurisdiction in respect of the relevant offence(s). The Magistrate was, therefore, correct to hold that she did not have the power to give a sentence indication absent the power to deal with the charges.

The relevant provisions of the Criminal Procedure Act2009 (Vic)

It is necessary, initially,…

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 Jeffrey v Schubert

Details

AGLC: Jeffrey v Schubert [2012] VSC 144
Case: [2012] VSC 144
Decision Date: 27 April 2012

CaseChat Overview and Summary

Jeffrey brought a judicial review application against Schubert, the Chief Magistrate, challenging a decision not to provide a sentencing indication. The case was heard by the Supreme Court of Victoria, which was required to determine whether the Chief Magistrate had made a jurisdictional error when deciding not to provide a sentencing indication to the applicant. The court had to consider whether the Chief Magistrate had the power under the Criminal Procedure Act 2009 (Vic), section 60, to provide a sentencing indication in a committal case. The court examined the relevant statutory provisions and relevant case law, and concluded that the Chief Magistrate did not have the power to provide a sentencing indication in a committal case. The court found that the Chief Magistrate did not commit a jurisdictional error in deciding not to provide a sentencing indication, and dismissed the application for judicial review. The Supreme Court found that the Chief Magistrate's decision was within their jurisdiction and did not constitute a jurisdictional error. As a result, the application for judicial review was dismissed, and no further orders were made.

Orders