JV v Children's Court of Victoria
[2023] VSC 656
•13 November 2023
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S ECI 2023 01019
| JV (a pseudonym) | Plaintiff |
| v | |
| CHILDREN’S COURT OF VICTORIA | First Defendant |
| - and - | |
| RUTH VAN DER POL | Second Defendant |
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JUDGE: | Forbes J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 13 October 2023 |
DATE OF JUDGMENT: | 13 November 2023 |
CASE MAY BE CITED AS: | JV v Children’s Court of Victoria & Anor |
MEDIUM NEUTRAL CITATION: | [2023] VSC 656 |
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ADMINISTRATIVE LAW – Judicial review and appeals – Judicial review of decision by Magistrate in the Children’s Court – Adequacy of reasons – Where Magistrate provided only oral reasons and did not deliver anticipated written reasons – Whether oral reasons were adequate – Whether reasoning shown to be consistent with directions to a jury – Section 4A Jury Directions Act 2015 (Vic) – Makeham v Sheppard [2020] VSCA 242 – Discretionary relief – Availability of statutory appeal under s 430P Children, Youth and Families Act 2005 (Vic) and/or re-hearing before County Court – Kuek v Victoria Legal Aid (2001) 3 VR 289 – Perkins v Victorian Bar [2007] VSCA 107 - Garde-Wilson v Legal Services Board (2008) 19 VR 398.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | J Barreiro | Slades & Parsons |
| For the Second Defendant | S Payne | Victoria Police |
HER HONOUR:
JV (the accused) faced four criminal charges: one charge of rape and one each of each of production, possession and distribution of child abuse material. After a five day hearing in the criminal division of the Children’s Court of Victoria (the Children’s Court), the Magistrate found him guilty of all four charges. JV seeks review in this Court under Order 56 of the Supreme Court (Civil Procedure) Rules 2015 (Vic) (the Rules) to set aside orders of conviction and sentence made by the Children’s Court on 17 January 2023 and remit the criminal charges for hearing by a different magistrate. The sole ground of relief is that the Magistrate failed to give adequate reasons for his decision.
JV’s identity is protected by pseudonym, along with the other child witnesses in accordance with s 534 of the Children, Youth and Families Act 2005 (Vic) (the Children, Youth and Families Act).
The first defendant filed a letter indicating it would abide the outcome. The second defendant (hereafter referred to as the respondent) appeared and contested the matter.
The hearing before the Children’s Court
The hearing commenced on 6 September 2022. The prosecution case was that the complainant, who was 15 at the time, held a party at her family home on 26 January 2020. JV and his friend BM were amongst those invited. JV was aged 16 at the time. BN, another boy who was a friend of the complainant, was also invited, as were the complainant’s sister and a number of others including a friend, MO, and MO’s brother BO. Alcohol was consumed. During the evening the complainant and BN, after being intimate in a bedroom, went to a caravan parked in the front yard together with JV, BM and BO. The complainant engaged in a number of consensual sexual acts in the caravan with, variously, BN, BM and JV. BO left the caravan at an early stage. The consensual activity included a selfie photo showing the complainant’s naked genitals and BM and JV with their thumbs up and digital penetration of her vagina by BM and BN. After also engaging in penile/vaginal intercourse with BN, the complainant said she felt something enter her vagina. She initially thought that the object was BN’s finger, but in fact it was the handle of a spanner (also referred to as a shifter during the Children’s Court hearing and before me), which JV had inserted. This constituted Charge 1 (rape). At the commencement of the hearing, the prosecution withdrew a second charge of rape relating to penetration using a Vodka Cruiser bottle.
BM took a short video (the video) of the insertion of the spanner handle. There was also a still photo. The video and photo form the basis for the three child abuse material charges (CAM charges). The prosecution case was that they were taken without the complainant’s knowledge and later circulated. JV had been sent the video and saved it to his phone. His admission to the police of this was the basis for Charge 3 (production). JV showed the video to others on a weekend in February 2020 at a gathering for the complainant’s birthday, which was the basis for Charge 4 (distribution). JV’s phone was seized and the analysis of the data on the phone relied on the video and selfie photo on the phone as the basis for Charge 5 (possession). The prosecution said the CAM charges depicted a criminal offence, namely rape, and so satisfied ss 51C(I), 51D(I) and 51G(I) of the Crimes Act 1958 (Vic) (the Crimes Act).
JV admitted penetration using the spanner. The issue in the case was consent. The prosecution case was that the complainant had no prior knowledge that the spanner would be used as it was and had no opportunity to give consent. The prosecution added that the complainant did not indicate in any way that she consented to JV’s act, and was not aware that a spanner handle had been used until some days later. The prosecution intended to call BN and BM and anticipated that they would corroborate the complainant’s account on the question of consent. The prosecution also intended to call two complaint witnesses – the complainant’s sister and another friend who had also been at the party – as well as the informant and a police officer who examined JV’s phone when it was seized. The prosecution called the seven witnesses over four days of evidence.
JV’s defence was that the complainant did consent, or alternatively that JV had a reasonable belief as to the complainant’s consent to the charged act and all acts within the caravan. The defence argued that the other acts involving JV and others in the caravan are part of the circumstances demonstrating JV’s reasonable belief as to consent. Cross-examination brought out that the atmosphere in the caravan over the course of about an hour was sexual, chaotic, noisy and full of laughter.
Similarly regarding the CAM charges, the defence relied on s 51N of the Crimes Act. Section 51N is a defence available to a child who is not more than two years older than the child in the image where the image does not depict an act that is a criminal offence punishable by imprisonment or, if it does depict such an act, the child reasonably believes it does not depict such an act.
JV did not give evidence. He relied on a full record of interview in which his answers admitted the fact of penetration with a spanner handle and said the complainant did indicate consent. He otherwise relied on the prosecution witness evidence – both challenged and unchallenged.
The complainant was cross-examined. BM and BN were called and cross-examined. Unusually, in re-examination, the prosecution made applications pursuant to s 38 of the Evidence Act 2008 (Vic) (the Evidence Act) to have each declared an unfavourable witness based upon prior inconsistent statements. The Magistrate granted the applications and the prosecution proceeded to cross-examine BM and BN. The two complaint witnesses – the complainant’s sister and the complainant’s friend – gave evidence and were not challenged. The informant was cross-examined, including as to the accused’s good character. The evidence of the police officer about the content and analysis of JV’s phone explained that at some point after his initial examination the video could not be retrieved from the phone and so it was not available to the Court or to the defence.
At the conclusion of the evidence a further day was listed for legal argument and closing submissions. Both parties provided a written outline of the directions they sought under s 4A of the Jury Directions Act 2015 (Vic) (the Jury Directions Act) and an outline of closing submissions to which they spoke. At trial the prosecution requested the following directions:
(a) directions regarding consent and reasonable belief in consent;[1]
(b) a direction on the use of evidence of incriminating conduct;[2] and
(c) a direction in relation to a witness’s motivation to lie sought in relation to the evidence of BM and BN.[3]
[1]Jury Directions Act 2015 (Vic) ss 46, 47.
[2]Ibid s 21.
[3]Ibid s 44L.
The defence objected to the incriminating conduct direction sought by the prosecution and questioned the legal basis upon which the prosecution can rely on motive to lie in relation to their own witnesses, but in any event submitted if appropriate it was only appropriate against BN. The defence requested:
(a) a Liberato direction,[4] which the prosecution said was not necessary given the presence of two other witnesses;
[4]Liberato v The Queen (1985) 159 CLR 507 in accordance with 3.7.3 of the Criminal Charge Book.
(b) a direction as to the use of complaint evidence: that it can be used in assessment of a complainant’s credibility, but is not independent evidence of the events;
(c) a direction as to the complainant’s motive to lie,[5] motivated by her peers’ ongoing criticism of her participation in consensual acts and humiliation from the ongoing sharing of the videos;
(d) a direction regarding the failure to call evidence in relation to a number of witnesses whom the prosecution did not call;[6] and
(e) a good character direction in relation to the accused.[7]
[5]Jury Directions Act 2015 (Vic) s 44L.
[6]Ibid s 43.
[7]In accordance with the Criminal Charge Book Part 4.3, where evidence of good character had been led pursuant to s 110 of the Evidence Act 2008 and which direction was requested by the defence (see s 14 Jury Directions Act 2015).
The point of greatest contention was the prosecution request and the defence’s resistance to an incriminating conduct direction. Section 21 of the Jury Directions Act provides:
21 Mandatory direction on use of evidence of incriminating conduct
(1)If the prosecution relies on evidence of conduct as evidence of incriminating conduct, the trial judge must direct the jury that—
(a)the jury may treat the evidence as evidence that the accused believed that he or she had committed the offence charged or an element of the offence charged, or that he or she had negated a defence to the offence charged, only if it concludes that—
(i) the conduct occurred; and
(ii)the only reasonable explanation of the conduct is that the accused held that belief; and
(b)even if the jury concludes that the accused believed that he or she had committed the offence charged, it must still decide, on the basis of the evidence as a whole, whether the prosecution has proved the guilt of the accused beyond reasonable doubt.
(2)In giving a direction under this section, a trial judge need not refer to each act or omission of the accused.
The prosecution’s notice of its intention to rely on incriminating conduct (the Notice)[8] identifies eight specific pieces of information that JV gave in his record of interview that are described as lies. Those answers go to the issue of consent. The Notice sets out the evidence relied on to establish the answers as lies, comparing specific answers in JV’s record of interview with the complainant’s VARE[9] and BN’s the statement, as well as the video (no longer accessible) and a still photograph of the admitted penetration.
[8]Exhibit D, Notice: Evidence of Incriminating Conduct dated 10 August 2022.
[9]Video and Audio Recorded Evidence. The complainant’s VARE comprised most of her evidence-in-chief.
The prosecution drew a distinction between lies said to be incriminating conduct and lies pertaining to credit upon which it sought to rely.[10] The prosecution’s use of the identified answers as credit lies was not in issue but the defence strongly disputed the use of JV’s answers as an implied admission of guilt. The prosecution argued that JV had put forward a positive defence in an effort to exculpate himself, which was not corroborated by the complainant’s and BN’s evidence, and therefore could be used as an implied admission by JV as to the consent element of the rape charge. The defence resisted this, saying JV’s record of interview was asserting a defence to the charge and that to rely on those statements as lies and therefore incriminating conduct would mean that the fact-finder had already accepted the evidence of the complainant, and for that matter the other evidence relied on, as truthful as to the events described. The defence submitted that therefore it is impossible to use the ‘lies’ about the events as part of the path of reasoning to a determination of guilt or innocence.
[10]Transcript of Proceedings, ‘The Police v JV’ (Children’s Court of Victoria, 1 September 2022 – 9 September 2022, 13 September 2022, 10 November 2022), 16 (13 September 2022) (‘Trial Transcript’).
The debate squarely raised the issue of what use could be made of JV’s record of interview. This was important in light of the fact that although there were two witnesses present in the caravan, BN and BM gave contradictory evidence about events and were ultimately found by the Magistrate to be unreliable witnesses. At the conclusion of the parties’ submissions as to a direction on incriminating conduct, the Magistrate observed: ‘It’s a matter for me to make a decision on.’[11]
[11]Trial Transcript (13 September 2022) 28.
The submissions to the Magistrate
In closing submissions the prosecution pointed to JV’s admission of intentional penetration and submitted that the ‘sole fact in issue in this matter is whether the complainant consented or whether JV reasonably believed that she consented’.[12] The prosecution submitted that the complainant’s evidence was that she did not say or do anything to indicate consent before the act of sexual penetration, nor was there opportunity for her to do; her evidence was clear that she had no prior knowledge that penetration was going to occur.
[12]Ibid 10.6-7.
The prosecution made one submission regarding whether JV reasonably believed the complainant had consented, submitting that JV’s record of interview, which gave a specific account of the complainant’s words as to consent, was not corroborated by anyone else in the caravan and so could only be viewed as a lie. That is, the submission relied on a ruling favourable to the prosecution as to the Notice. The prosecution relied on other lies that JV told in his record of interview as to credit including telling police he did not have the video that police subsequently found on his phone.
The defence submitted that the complainant’s credibility was fundamental to the prosecution case but was compromised by a number of matters. The submission identified evidence of words used by the complainant, together with the entirety of the consensual sexual acts engaged in as impacting upon the belief of a teenage boy as to consent. Similarly the defence submitted it was improbable that the complainant was not aware of photos and videos being taken. The video of digital penetration filmed by BM was not covert but filmed by a person within the complainant’s field of vision. The defence said the complainant’s reliability was also impacted by the complaint evidence of her sister and friend, in particular by two matters: the friend’s description of the complainant’s version of events with the Cruiser bottle that evening compared with the complainant’s evidence to the court that she had no recollection, and BN’s evidence, which he maintained, of the complainant’s words about that particular matter. Other issues as to reliability – delay and motive to lie – were also raised.
Before coming to the reasons given, it is necessary to say something more about the way that the evidence unfolded in the hearing, particularly the evidence of the three people present in the caravan. The complainant’s evidence in chief comprised her VARE and some additional questions that described the interior of the caravan and the positioning of herself and others during the events described, by reference to photos of the caravan interior. She was asked about the video recording that JV showed at the gathering in February 2020. She identified sexual activity that she consented to and said apart from the selfie photo she did not consent to anything in the caravan with JV.
When she was cross-examined she was asked about events in the caravan in sequence. She agreed that she and the boys were in the caravan for about an hour. She agreed that the other boys were joking and encouraging her and BN. She agreed to other consensual sexual activity with BN occurring that was not described in her VARE or evidence in chief. She said she was aware of the selfie photo and that ‘they’ were on Facetime with another boy. She said she knew that the boys were on their phones but did not know that they were filming.
The circumstances surrounding the use of a Cruiser bottle were not raised in her evidence in chief but were raised in cross-examination. The complainant said she had no recollection of those events.
The complainant confirmed that she had no knowledge that a spanner had been used until she was told the following day. She denied that she had used the words that JV’s record of interview said she had used. It was put to her that the sexual activity with JV was consensual, which she denied. She agreed that the sexual activity ceased after the spanner. There was difficulty in putting to the complainant that her complaint to the police that all three boys did things without her consent was untrue.[13] There was also difficulty putting to her the question that the complainant had motive, conscious or unconscious, to say later that she didn’t consent because she had been judged harshly by her peers.
[13]What was being put to her was that she told police that apart from JV’s action being without consent she also reported that BN and BM filmed activity without her consent.
The complainant disagreed with various statements that BN and BM made to the police. BN had described to the police that the complainant said to the other boys ‘Here use this’ referring to a Cruiser bottle. The complainant disagreed. She agreed that she didn’t know about everything that happened in the caravan and the reference to the Cruiser bottle was one such example.
The complainant was shown a second video taken in the caravan showing consensual sexual activity between her and BM.[14] She agreed the atmosphere shown in the video was as it was for the duration of the time in the caravan. She was lying on her back but said she was unaware that she was being filmed at the time. In re-examination she said the video depicted sexual activity with JV. When asked who was in the video she then said she didn’t know and that she was confused. The prosecutor submitted that the complainant wrongly answered JV in the context of a contested hearing about JV. The Magistrate observed: ‘I’m just worried that she (indistinct) a bit confused about everything.’[15]
[14]Trial Transcript (1-9 September 2022) 49-50.
[15]Ibid 51.
As to her complaints, the complainant agreed that she spoke to her close friend MO, BO’s sister, that evening and they had argued about the complainant’s romantic interest in BN. The complainant agreed she told MO there had been sexual activity in the caravan but said she did not provide any specifics. She agreed she spoke again to MO the next morning, and it was MO who told her that there was a video with a spanner and told the complainant about the Cruiser bottle. The complainant said she called another friend and repeated what MO had told her. The complainant was cross-examined about subsequent events but it is unnecessary to detail that evidence.
The prosecution called both the complainant’s sister and the complainant’s friend to give evidence of contemporaneous complaint. The friend gave evidence of what she was told by the complainant the day after the event. The sister gave evidence by way of VARE. The defence did not challenge their evidence. Neither BO nor MO were called to give evidence.
BM’s evidence was given under the protection of a s 128 certificate as some charges against him remained pending. He had participated in a record of interview and been charged but he declined to make a statement in JV’s criminal proceeding. The prosecution decided shortly prior to the hearing to call him. Critically the evidence in chief led from him regarding events in the caravan was very limited. When asked to describe the first thing that happened, he described consensual sex between the complainant and BN. After a series of questions about that event the prosecution asked BM about his recollection of what happened next. He described the circumstances in which the spanner was used and said it occurred within a minute or two after the complainant and BN stopped having sex. BM said he filmed the spanner event but gave evidence that he did not know who was holding the spanner. He couldn’t recall the minutes immediately prior to the penetration with the spanner.
Asked whether the complainant was aware of the spanner before it was used, BM said ‘I don’t think [she] was aware of, like, the spanner at all until it - after it happened’.[16] When asked how he came to that view he said ‘you think you’d know that’. He said his only recollection of events before the spanner was used was laughter between the boys. He otherwise gave evidence of consensual fingering and the selfie photo.
[16]Ibid 111.7-8.
In cross-examination BM agreed that there was a heightened sexual environment in the caravan; it was loud and chaotic, and everyone was laughing. BM was asked about the various statements that he, BN and JV made to the police regarding phrases they said the complainant had used (which she had denied in her evidence), predominantly related to the question of reasonable belief as to consent. As to BN’s statement to police that the complainant said ‘Here use this’, BM said that he didn’t hear this but accepted it could be possible that she said those words. BM was asked whether he could rule out that that the complainant said ‘Put this in me’ in relation to the spanner, which JV said in his statement to the police. BM said ‘It’s possible but I don’t, like (indistinct)’. Up until the end of BM’s cross-examination, he had said nothing inconsistent with any prior out-of-court statement.
In re-examination, BM was asked about his answer that it was possible the complainant had used the words described in JV’s police statement before the spanner was used. The prosecution put to him in his evidence in chief that any such conversation was only between the three boys. I observe that as far as the transcript reveals BM’s evidence in chief, he did not say there was a conversation between the three boys but merely a look and a laugh. In any event BM was asked whether his evidence in chief – that there had been no conversation with the complainant prior to the spanner being used – was consistent with his answer that it was possible the complainant had said the words JV told the police she had said. BM’s answer was that the two answers were consistent because before cross-examination he did not know who had used the spanner and his answers in cross-examination were right because the complainant had been laughing throughout.
Critically, he was asked: ‘putting aside your evidence, do you recall what you told the police about the complainant’s knowledge of the spanner?’[17] The answer is indistinct on the transcript but this is the answer that led to the s 38(1) Evidence Act application to declare BM unfavourable. The application was based upon BM’s responses in evidence through re-examination being ‘in stark contrast’ to evidence given in chief the day before and in contrast to the record of interview. It was an unusual situation having accepted that to the end of cross-examination there was no inconsistency with the prior out of court police statement. The defence sought to confine any cross-examination to the issue of consent regarding the spanner as there had been no inconsistent statement regarding the Cruiser bottle. At one point the prosecution agreed to do so. There was then a process before the Magistrate to identify the relevant parts of the police statement relied on. The Magistrate then granted the application and cross-examination was conducted as to both the Cruiser bottle and the spanner. The prosecution read out a series of responses from BM’s record of interview and asked BM if he recalled his answers. He agreed that the answers read to him were different from his evidence in cross-examination but when it was put that he lied in his evidence to the Court on the first occasion, his answer was not recorded in the transcript. The prosecution put a second series of questions and answers to him from his police statement. He agreed they were different to what he had told the Court and agreed that he had lied to help his friend. The prosecution read out a third part of the police interview and BM agreed he had lied to the Court in cross-examination.
[17]Trial Transcript (1 – 9 September 2022) 165.
Similarly BN was subject to an application to be declared unfavourable during his re-examination. His evidence in chief recalled very little other than sexual activity between himself and the complainant. He said there was no discussion about the spanner nor did he recall seeing the spanner in the caravan. He could not recall the spanner being used. The first time he saw it was the video a few days later. In cross-examination he recalled the complainant giving consent to something being put into her but couldn’t say what that was. He confirmed JV’s statements about things the complainant had said to the police, including ‘Here use this’ regarding the Cruiser bottle. BN’s evidence was that the complainant gave consent for that to occur. In re-examination, the prosecution pointed to the difference between answers in cross-examination from those given in examination in chief and subsequently made an application under s 38(1) of the Evidence Act. The prosecution said that the prior inconsistent statement was that BN told police he didn’t hear any talk about a spanner. The Magistrate said that clarity was needed. No ruling was given in the transcript as to the outcome of the s 38(1) application.
BN was recalled and the prosecution cross-examined him on his answer to the police: ‘I didn’t hear anyone talk about a spanner. I don’t even know where it came from’. BN accepted that his evidence in chief was that he didn’t hear any conversation about a spanner. He said his evidence to the police and to the Court was that the complainant did give consent and his police statement was not a lie. He said he did hear her say ‘Here use this’ but he didn’t know what she was referring to. Unlike BM, he did not accept that he had lied or changed his evidence.
There is no ground of appeal that addresses BN’s or BM’s evidence nor the Magistrate’s reasons for finding their evidence to be unsatisfactory. However, the unusual circumstances in which the contradictions in their evidence arose meant it was difficult to know whether their evidence favoured the prosecution or the defence before such time in re-examination when prior inconsistences were raised and the prosecution cross-examined each witness. The applications made in relation to each witness seemed in large part wanting to address inconsistencies between in court evidence in chief and cross-examination, rather than an inconsistency between in court evidence and a prior statement of the witness. This is an important element to bear in mind when assessing the adequacy of the reasons, as will become clear.
The reasons for the findings of guilt
Against this legal and factual landscape the Magistrate delivered his oral reasons on 10 November 2022 (the reasons). After setting out the charges and the denials, the ages of the young complainant and accused, and the names of the witnesses called, he said:[18]
The accused did not give evidence as he is fully entitled not to do so and did not lead any further evidence. Then I go on to make references to the Liberato direction.
The central issue regards the allegation of rape, was one of reasonable belief of consent from [the complainant] to [JV]. It is apparent that [the complainant] has willingly invited [BN], [BM] and [JV] into the caravan located at the front of her home. [The complainant] had consumed some alcohol though it is not put to me that the level of consumption of alcohol had any real part in the sequence of events. It is also conceded by [the complainant] that she engaged in consensual sexual activity with [BN] in the presence of the other two young persons. Further it is conceded by [the complainant] that she gave clear consent to [BM] and [JV] to take selfie photos showing her exposed back and genitalia.
[The complainant] denies giving any form of consent to either [JV] or [BM] to insert the object, namely a shifter, into her vagina. [JV] relies on the understanding and [the complainant] had given a general consent to the young persons, including the words, "I don't care who but someone fuck me." Evidence was led from both [BM] and [BN] both of who were declared unfavourable witnesses and extensively cross-examined. I then go through and make reference the two witnesses, [BM] and [BN].
[18]Trial Transcript (10 November 2022) T296.18-297.11 (emphasis added).
His Honour’s reasons for concluding that BM and BN were both unreliable witnesses went on:[19]
In regards to the evidence of [BM and BN] I am of the view that both were unreliable witnesses. [BM] gave evidence…of [BN] and [the complainant] engaging in consensual sexual activity. He recalled [the complainant] facing the wall and someone inserted into [the complainant’s] vagina – I think I just missed a word in there - …He agreed he video-taped the spanner incident. He could not conclusively be sure who picked up the spanner. He gave further evidence that ‘[the complainant] was not aware of the spanner until after it happened’….[BM] returned the next day to conclude his evidence. He was cross-examined by counsel for [JV]. The evidence was significantly different to what he had given the previous day. Upon re-examination by the Crown, [BM] agreed he had given false or misleading information earlier…during cross-examination. I found the extent to which [BM] varied and changed the content of his evidence to question the reliability of the entirety of his evidence. I question the credibility of [BM’s] evidence.
[19]Ibid T296.12-298.4.
He said of BN:
He also was declared an unfavourable witness after finding some prior inconsistent statements. [BN] gave evidence that [the complainant] had given consent to the accused and others and others with regards to the insertion of the shifter into her vagina. As with [BM] I find [BN’s] evidence vague and formed the view he had attempted to obfuscate the extent of his knowledge and understanding of what transpired upon that evening in question.[20]
[20]Ibid T298.5-298.13.
The Magistrate then turned to the evidence of the complainant:[21]
I now turn to the evidence of [the complainant] via her VARE and in cross-examination. [The complainant’s] evidence was powerful and consistent. She conceded there were parts of her evidence which she could not properly recall. She was sure of herself as to the extent of the consent she had given the young persons. She is clear in conceding she had given consent to [JV] and [BM] to take the selfie photo.
She was clear in her evidence that she did not consent to the videos being taken. She was clear in her evidence that she did not consent to the insertion of the shifter into her vagina. In fact, in her evidence and consistent with [BM’s] day 1 evidence, [the complainant] was not even aware of the shifter until well after it had been inserted into her. Her knowledge of the shifter came later from the whispers she heard later that night about a shifter, the subsequent video that was placed into social media and the discussion she had with her friends and with [JV] and [BN].
On [the complainant’s] – [the complainant] to be a strong, powerful and reliable witness who presented with an enormous dignity throughout the trial. I accept her evidence. I have considered the evidence of [BN] in the crime.
[21]Ibid T298.14-T299.6.
His Honour then expressed his conclusion:
Having concluded the reliability of the witnesses in evidence put before me, I am satisfied beyond reasonable doubt the charges against [JV] are met. Accordingly I find [JV] guilty of all charges before the court.
At the conclusion of delivery of the oral reasons, defence counsel asked ‘…is your Honour handing down written reasons?’,[22] to which the Magistrate replied:
I’ve written some reasons down which I will need to clear up. So I’ll hand those down as soon as I manage to clean that up. There’s a few mistakes I’ve spotted in these already.[23]
[22]Ibid T299.14-16.
[23]Ibid T299.17-22.
During an application to adjourn the plea hearing on 12 December 2022, counsel for the prosecution enquired whether the written reasons would be released to the parties prior to the return date. The Magistrate confirmed he had drafted written reasons which contained errors and that he would endeavour to finalise and distribute those reasons prior to the return date of 17 January 2023.[24] On 16 January 2023, JV’s solicitor emailed the Children’s Court requesting a copy of his Honour’s written reasons and was informed that ‘there are no physical written reasons for the finding of guilt’ and ‘the reasons were announced verbally in open court.’[25]
[24]Plaintiff, ‘Affidavit of Merran Shanahan’ sworn on 16 March 2023 in JV v Children’s Court of Victoria & Anor S ECI 2023 01019 [15].
[25]Ibid exhibit MS-2.
THE ISSUES UPON REVIEW
1. Is an extension of time needed?
This proceeding commenced on 15 March 2023. The respondent raised as a preliminary point that the originating motion was filed out of time.
The respondent submits that the findings of guilt on 10 November 2022 were a determination within r 56.02(2) of the Rules and therefore the ground for relief first arose on that date. If correct, counsel submits that time expired on 25 January 2023. JV submits that the adequacy of reasons ground did not arise until such time as the Children’s Court advised that the reasons pronounced in Court were the only reasons. JV submits that time commenced from this date because up until that time the Court had indicated that it would hand down written reasons. Therefore, JV contends he was within time. If necessary, JV applies to extend time to commence the proceeding.
Order 56.02 of the Rules provides:
(1)A proceeding under this Order shall be commenced within 60 days after the date when grounds for the grant of relief or remedy claimed first arose.
(2)Where the relief or remedy claimed is in respect of any judgment, order, conviction, determination or proceeding, the date when the grounds for the grant of the relief or remedy first arose shall be taken to be the date of the judgment, order, conviction, determination or proceeding.
(3)The Court shall not extend the time fixed by paragraph (1) except in special circumstances.
The respondent relies on the finding of guilt as a determination. However, as the relevant proceeding was criminal, in my view the term ‘conviction’ and ‘order’ are also relevant. Conviction was recorded with sentence in orders dated 17 January 2023. Curiously, and somewhat confusingly, the orders noted the sentence that would have been imposed but for the plea of guilty.[26] JV lodged an appeal to the County Court pursuant to s 424 of the Children, Youth and Families Act within time on 14 February 2023.
[26]There was no plea of guilty.
‘Conviction’ is a term of some ambiguity. In Director of Public Prosecutions v Hai Minh Nguyen; DPP v Duncan,[27] the Court of Appeal observed that in R v Drew,[28] the term ‘conviction’:
was capable of more than one meaning, sometimes being used to refer to the verdict of the jury, and at other time used in the more strictly legal sense, as the sentence of the Court. Lord Reid had earlier said that the terms was often used to mean the final disposal of a case, but noted that it was not uncommon for it to be used as meaning a finding of guilt.
[27](2009) 23 VR 66, 69.
[28][1985] 2 All ER 1061.
‘Conviction’ is defined in the Children, Youth and Families Act to include a finding of guilt by the Court, whether or not a conviction is recorded. This definition says nothing about time limits where a conviction is recorded as here. Part 5.4 provides that the right of appeal to the County Court, which is an appeal conducted by way of rehearing, must be filed within 28 days of the imposition of sentence. More generally time runs for an appeal on a question of law under s 272 of the Criminal Procedure Act 2009 (Vic) and s 430P of the Children, Youth and Families Act from the day on which the order complained of was made.
To the extent there is uncertainty as to whether the conviction date for the purpose of calculating the 60 day period is the oral finding of guilt or the written entry of conviction and sentence, in my view time is calculated from the making of an order as to conviction. This would be consistent with the alternative relief of an appeal by a party to a criminal proceeding on a question of law which provides for time to run from the date the order complained of was made. It is also consistent with the commencement of time for alternative relief of an appeal by way of rehearing to the County Court. On this basis JV’s proceeding is within time.
If I am wrong and time runs from the oral pronouncement of guilt with the accompanying oral reasons, then JV must show that special circumstances exist in order to extend time. The term is one of deliberate flexibility. The qualifying adjective looks to circumstances that are unusual, uncommon or exceptional, looked at the particular context in which they occur.[29] In this case, the sole ground of review is the adequacy of the Magistrate’s reasons for finding the charges proven. The circumstances relied upon to show special circumstances are:
[29]Re Beadle and Director General of Social Security (1984) ALD 1, 3 (Toohey J).
(a) The acknowledgment during the hearing that rulings were required, in particular a ruling on the use to be made of the accused’s statements in the Notice, and some of the disputed directions sought.
(b) The provision of oral reasons and the specific reference to more expansive written reasons that were to follow, including the reference:
Although the plea hearing’s not been done but because the decision’s going to be handed down then ….[30]
(c) The repetition by the Magistrate on 12 December 2022 confirming he had drafted reasons and would endeavour to finalise and distribute them before the return date on 17 January 2023.[31]
(d) The contrary information provided without elaboration that no written reasons existed.
[30]On 10 November 2022 after delivering oral reasons; see Trial Transcript (10 November 2022) 302.
[31]Plaintiff, ‘Affidavit of Merran Shanahan’, [15].
In circumstances where the judicial officer reserved his decision and provided oral reasons that were intended to be supplemented by written reasons, it is reasonable to accept that the adequacy of the reasons could not be sensibly considered until those written reasons were provided. JV relies on no other grounds of review that might warrant commencement prior to it being made clear that no additional reasons would be forthcoming. In my view, were it necessary to do so, I would be satisfied that special circumstances exist.
2. Are the reasons adequate?
Legal principles
The duty of a judicial officer to give reasons for the decision reached is integral to the exercise of judicial power.[32] The adequacy of those reasons is measured by their sufficiency in explaining the basis for the decision.[33] Adequate reasons must expose a path of reasoning.[34] Reasons should identify the material factual findings upon which the outcome is based and the ultimate factual conclusion reached. Where there are conflicts or discrepancies in the evidence, it is not generally sufficient to rehearse the different evidence. An explanation of the basis for preferring one piece of evidence over another should also be provided.[35]
[32]Wainohu v New South Wales (2011) 243 CLR 181, [54]; Karabagias v Katopodis [2022] VSCA 191, [10]; Makeham v Sheppard [2020] VSCA 242 (‘Makeham’).
[33]Public Service Board (NSW) v Osmond (1986) 159 CLR 656, 666-667.
[34]Hunter v Transport Accident Commission [2005] VSCA 1, [21] (Nettle JA).
[35]Bookless v Smith [2020] VSC 56, [24].
What amounts to adequate content of reasons will be informed by the nature of the matter under consideration and the way in which the parties identified the issues in dispute and their importance. Reasons may be adequate even though they do not deal with the detail of every submission advanced in a hearing if they sufficiently deal with the issues necessary to reach the ultimate conclusion.[36]
[36]Beale v Government Insurance Office (NSW) (1997) 48 NSWLR 430, 443-444.
The importance of reasons underpins the proper administration of justice. Reasons inform a superior court asked to determine whether a decision below contains an error of law or appealable error. They support the decision of the Court being accepted by the parties; in other words they allow parties (and in particular a losing party) to understand why the case has been decided in favour or adverse to them. They promote public confidence in the process of decision making and promote accountability of judicial officers. They supports consistency in decision making and provide guidance as to the applicable law and its application to particular factual circumstances.[37]
[37]Fletcher Construction Australia Ltd v Lines MacFarlan & Marshall Pty Ltd (No 2) (2002) 6 VR 1, 31 [100].
Section 4A of the Jury Directions Act confirms that a judicial officer hearing a criminal matter without a jury must reason in a manner consistent with how a jury would be directed on the evidence and its use. It provides:
4A Application of Act to criminal proceedings without juries
(1) This section applies to –
(a) a summary hearing or committal proceeding under the Criminal Procedure Act 2009; and
…
(2)The court’s reasoning with respect to any matter in relation to which Part 4,5,6 or 7 makes provision –
(a)must be consistent with how a jury would be directed in accordance with this Act; and
(b) must not accept, rely on or adopt –
(i)a statement or suggestion that this Act prohibits a trial judge from making, or
(ii)a direction that this Act prohibits a trial judge from giving.
In Makeham v Sheppard (‘Makeham’),[38] the Court of Appeal considered the adequacy of a magistrate’s reasons for conviction and in particular their adequacy in light of s 4A of the Jury Directions Act. The Court upheld the appeal on the ground that the availability of a de novo appeal to the County Court did not lessen the need for adequate reasons for the initial decision of the magistrate. The appellant, who was the accused before the Magistrate, had submitted that the Magistrate should direct herself, identifying five particular directions. On appeal, while the reasons did adequately deal with four of the directions sought, the direction as to the accused’s good character was not adequately exposed by the reasons. After setting out generally the principles relevant to the adequacy of reasons of a judicial officer exercising summary jurisdiction, Priest JA (with whom Kyrou and Weinberg JJA agreed) turned to the impact on these principles of the obligation in s 4A stating:
First, the language of s 4A(2) makes clear that a magistrate’s reasoning in relation to any matter provided for in Parts 4, 5, 6 or 7 of the JDA, ‘must be consistent with how a jury would be directed in accordance with the Act (and must not accept, rely or adopt a statement or suggestion that the Act prohibits a trial judge from making, or a direction that the Act prohibits a trial judge from giving). Section 4A does not, however, provide that a magistrate’s reasons necessarily must recite that he or she has directed himself or herself in accordance with the provisions of Parts 4 to 7. The obligation to give adequate reasons continues as an ordinary incident of the judicial process recognised at common law, rather than as a statutory obligation arising under the JDA. Hence, the content and extent of a magistrate’s reasons will continue to be dictated by the nature of the matter under consideration; the evidence in the case; and the important issues raised (some or all of which in a given case may invoke consideration of provisions of the JDA).[39]
[38]Makeham (n 32).
[39]Ibid [50] (emphasis in original).
Submissions before me
JV‘s overarching submission is that the reasons do not permit him to understand why he had been found guilty nor do they expose the pathway by which reasoning led the Magistrate to a finding of guilt.
JV identifies four particular deficiencies:
(a) On the central question of consent, the reasons did not address factual conflicts between the complainant’s recollection of events and the evidence of other witnesses.
(b) The Magistrate made no ruling on JV’s state of mind relevant to his defence of reasonable belief in consent and addressed this defence only to say that the accused relies on an understanding that the complainant had ‘given general consent’.
(c) The reasons did not set out the evidence upon which the CAM charges were found proven and the Magistrate made no factual findings upon which to base a finding of guilt.
(d) There was no indication in the reasons as to how the Magistrate had directed himself in accordance with the Jury Directions Act and in particular how he had resolved the legal issue as to the direction in relation to incriminating conduct. The parties were entitled to a ruling on this issue and to have its resolution exposed by the actual path of reasoning to a finding of guilt.
The respondent submits that, notwithstanding the fact that the Court never handed down the foreshadowed written reasons, the oral reasons were adequate. As to the nature of the case, the respondent says that the fact JV admitted penetration with a spanner means that the only competing evidence was as to consent. The Magistrate’s conclusion that the complainant was consistent and reliable in her evidence of consent and the reasons articulated for the lack of reliability of BM and BN’s evidence were sufficient to demonstrate why JV was convicted. The respondent submits nothing more was required.
The respondent submits that a critical feature of this case was that the Magistrate derived benefit from actual direct viva voce evidence and had less need to rely on inferential reasoning or reasoning as a result of directing himself in accordance with the Jury Directions Act. The Magistrate turned his mind to conflicting evidence between the three prosecution witnesses and his reasons adequately address why he preferred the complainant’s evidence.
The respondent also submits that the availability of a de novo appeal is a relevant circumstance in assessing the adequacy of reasons.[40]
[40]Relying on Makeham (n 28).
Conclusion
I have come to the view that the reasons are not adequate to disclose the Magistrate’s path of reasoning and do not sufficiently deal with the contested issues that the parties raised.
Most significantly, the reasons fail to deal with JV’s state of mind. The defence did not simply rely on JV’s ‘understanding that the complainant had given general consent’; it also relied on specific acts and words as JV described in the record of interview. Both considerations were relevant to JV’s state of mind.
A critical part of the case was how the Magistrate could use JV’s record of interview. The prosecution contended that the contents could and should be viewed as lies that were admissions that could be used to reason to a finding of guilt. The defence strongly disputed this on the basis that it was circular reasoning, submitting that the statements could only be viewed as lies if a conclusion as to guilt had already been reached. The prosecution relied on almost all statements particularised in their notice as lies demonstrating admissions that JV did not have a reasonable belief as to consent.[41] The absence of any discussion in the reasons of JV’s statements or any consideration of his state of mind almost compels a conclusion that the Magistrate overlooked this aspect of the case.
[41]The prosecution identified credit lies including denial of possession of the video that was found on the accused’s phone. Trial Transcript (13 November 2022) T 36.2-37.3.
The parties sought a ruling on the use that could be made of JV’s record of interview and in the hearing the Magistrate recognised the need to rule on this issue. The reasons did not contain a ruling on this significant dispute. There was no discussion, let alone conclusion stated, about the untested evidence that JV gave in his record of interview. Nor did the reasons mention how, if at all, this evidence was used in the Magistrate’s reasoning process. Given the importance the prosecution placed in final submissions before the Magistrate on JV’s own words to meet the prosecution’s onus of proving beyond reasonable doubt that he did not have a reasonable belief in consent, it was critical that the Magistrate addressed the issue of JV’s state of mind. It was also critical that the Magistrate address the evidence of the atmosphere in the caravan as relevant to JV’s state of mind. The reasons did not extend beyond a determination of actual consent. In a very concrete way JV cannot know whether the Magistrate used JV’s own statements to convict him, or accepted that JV was a person of good character but nevertheless, on other evidence which his Honour accepted, found the charges proven.
There was mention of a Liberato direction in the reasons, despite the fact that the prosecution had submitted one was not needed given the presence of independent witnesses. No explanation was given as to why the Liberato direction was thought necessary. The direction is concerned with a conflict in evidence between a prosecution and a defence witness and the insufficiency of preferring the prosecution witness evidence. It is a direction that, where a decision-maker is convinced that the defence evidence is not true, it is necessary to put that evidence to one side and establish guilt beyond reasonable doubt on the basis of other evidence that is accepted. Assuming, although it was not stated, that the Magistrate did not accept JV’s statements to the police as truthful, the reasons do not disclose the admissible evidence that satisfied him as to the accused’s lack of reasonable belief as to consent.
As Gorton J said in Dadashy v Scholte:[42]
Where a complainant and an accused give conflicting evidence, the truthfulness and reliability of each must be assessed in light of the conflicting evidence of the other. It would be wrong to look at the evidence of a complainant in isolation, determine to accept it, and then, for that reason, reject the evidence of an accused as it [if it] were as a matter of logic, and conclude the offence proved beyond reasonable doubt.
It is this step – the reasoning required in accordance with a Liberato direction – that is absent from the reasons.
[42][2021] VSC 246, [18].
Putting to one side BN’s and BM’s evidence given the unfavourable findings about them as witnesses, what remained was the evaluation of the other evidence. This conflict between the prosecution witnesses meant that guilt fell to be determined by the balance of the prosecution evidence and considering the accused’s record of interview. This included the complaint evidence of the two complaint witnesses, which was not challenged by the defence but which the defence submitted bore adversely on the complainant’s credit. One perhaps might infer that the Magistrate took the view that the complainant’s credit was not undermined. In my view, the lack of challenge to their accounts, particularly that of the friend, did raise inconsistencies with the complainant’s evidence that were neither mentioned nor discussed.
The respondent submitted before me that during the hearing the Magistrate acknowledged the submissions as to relevant jury directions put before him by the parties, and by that acknowledgment had agreed with the need to direct himself in accordance with them. Whilst an acknowledgement or acceptance that a particular direction is appropriate may in all the circumstances be sufficient, I am not persuaded that the transcript reveals this occurred. It simply records the Magistrate as saying ‘Yes. Thank you’ at the end of discussion about a number of relevant jury directions. It occurs after a recording malfunction. Whether what is recorded in the transcript is an invitation to continue, a recognition of the submissions just made or an agreement in respect of any particular direction is unclear from the transcript and not enlightened by the reasons. Whilst alone it might be inferred that a magistrate appropriately directed themself as to good character, in the context of the competing submissions as to incriminating conduct, more was called for in this case.
As must be recognised, the detail of the reasons that a judicial officer is obliged to provide will vary in recognition of the busy caseload carried in particular by magistrates. However, this was a five-day contested hearing on serious charges. It included one day of submissions in which the parties handed written outlines for the assistance of the Magistrate. Appropriately, the Magistrate reserved his decision offering an opportunity for reflection and formulation of more comprehensive reasons. The Magistrate’s indication that written reasons would follow suggests that the oral reasons set out the conclusions reached and were to be supplemented by written explanation of how the Magistrate arrived at those conclusions. The reasons themselves read in a conclusionary way. There were comments suggestive of the oral delivery summarising draft written reasons; two are underlined above at paragraph [36].[43]
[43]See also Trial Transcript (10 November 2022) 297.17-19.
Accordingly, the reasons are inadequate in the ways identified in paragraphs [58](b) and (d) above.
Although this finding is sufficient to determine that the ground of review is made out, it is also desirable to say something as to the way in which the reasons dealt with the need to make factual findings and deal with the factual conflicts as raised by paragraphs [58] (a) and (c) above.
On the question of the complainant’s consent, the defence submitted that there were six factual matters that undermined the reliability of her evidence as to consent and lack of consent. The Magistrate did not mention those submissions, nor the reasons why – despite those matters – he concluded that the complainant’s evidence as to consent was compelling. In particular, on the issue of reasonable belief of consent, the Magistrate had mentioned the complainant’s words, including those italicised in paragraph [36], which the complainant had denied saying and which JV asserted she said. The reasons do not disclose any factual finding on whether those words were said, nor any mention or finding as to the events surrounding the Cruiser bottle. Both of these matters were relevant to JV’s belief as to consent.
The way in which BM and BN’s evidence was elicited also demonstrates that the assessment of witnesses and the factual contest that arose on the evidence was less than straightforward. The Magistrate concluded that he did not accept BN’s or BM’s evidence. Although his Honour did mention that both witnesses had been declared unfavourable, he did not address the circumstances in which this finding was made. And although he clearly granted the applications under s 38(1) to question BM and BN as unfavourable witnesses, given the subsequent cross-examination, the reasons themselves did not deal with the fundamental issue of what prior inconsistent statements were in fact relied on. The repeated references to ‘indistinct’ in the transcript section pertaining to this issue add to the lack of clarity.
Further, ordinarily, by s 38(4) of the Evidence Act, questioning an unfavourable witness pursuant to s 38(1) by the party who has called the witness is to take place before other parties cross-examine, unless the Court otherwise directs. However the Magistrate made no mention of or gave any direction in relation to s 38(4), despite the fact that the prosecution’s cross-examination pursuant to s 38(1) came after the defence’s cross-examination.
There was a clear contradiction between both BN’s and BM’s evidence in chief and cross-examination prior to being declared unfavourable, which itself undermined the reliability of BN and BM as witnesses for the prosecution. The Magistrate nevertheless used BN’s evidence in chief as corroborative of lack of consent despite being critical of his reliability. The reasons refer to the change in evidence being a concession in re-examination of having changed his evidence, which was quite simply not the case. The reasons did not in substance address the inconsistencies. Despite the direction as to motivation to lie sought by the prosecution, the closing submissions relied on the failure of BN and BM to corroborate JV’s account of events and resisted the need to consider the competing accounts of JV and the complainant putting to one sider these eyewitness accounts as unreliable.
The respondent submits that because the prosecution case was underpinned by the complainant’s reliability, the explanation given for the Magistrate’s acceptance of her evidence, and his rejection of the evidence of BM and BN, was sufficient for a finding of guilt, and nothing more was required. In support of this submission, the respondent relied on a passage from McHugh JA in Soulemezis v Dudley (Holdings) Pty Ltd (‘Soulemezis’),[44] qualifying the adequacy of reasons for factual findings where rights of appeal are confined to questions of law:
If, for example, the only issue before a court is whether the plaintiff sustained injury by falling over, a simple finding that he fell or sustained injury would be enough, if the decision turned simply on the plaintiff's credibility. But, if, in addition to the issue of credibility, other matters were relied on as going to the probability or improbability of the plaintiff's case, such a simple finding would not be enough.[45]
[44](1987) 10 NSWLR 247.
[45]Ibid 281.
The acceptance of the complainant as credible, and the discarding of prosecution witnesses BM and BN, was not sufficient to determine the charges because there remained the need to deal with the conflict between the complainant’s evidence and that of JV’s statement and the complaint evidence called by the prosecution. These were issues raised by the defence so that the success or failure of the defence, particularly as to JV’s belief about consent, could not be decided only by reference to the complainant’s reliability. As Meagher JA said in Beale v Government Insurance Office (NSW) after considering McHugh’s comments in Soulemezis:
Where one set of evidence is accepted over a conflicting set of significant evidence, the trial judge should set out his findings as to how he comes to accept the one over the other.[46]
The reasons do not address this.
[46]Beale v Government Insurance Office (NSW) (n 31) 442.
An assessment of the whole of the evidence was needed to traverse that which was challenged and that which was unchallenged or untested. The reasons warranted findings on contested facts upon which the issues of consent and belief as to consent could be decided to the requisite standard. While it was clearly open to the Magistrate, despite the challenges made to the reliability of the complainant’s evidence, to find her a compelling witness, he needed to explain why her evidence withstood the attack that was made, including an attack by unchallenged prosecution evidence, as part of his reasoning process.
For completeness, I accept JV’s submission that the availability of a rehearing as of right does not inform the adequacy or otherwise of the reasons provided for summary determination of a criminal matter. That reasoning was expressly rejected by the Court of Appeal in Makeham.
3. Should relief be refused on discretionary grounds?
The respondent contends that, as a matter of discretion, relief should be refused because the applicant has two alternative remedies:
(a) an appeal to the Supreme Court on a question of law under s 430P(1) of the Children, Youth and Families Act from a proceeding in the Criminal Division of the Children’s Court; and
(b) an appeal to the County Court pursuant to s 424 of the Children, Youth and Families Act which is conducted as a rehearing.[47]
The respondent accepts that she bears the onus of persuading this Court that the discretion should be exercised to refuse relief.
[47]An appeal to the County Court was lodged on 14 February 2023 and remains on foot.
JV has not filed an appeal on a question of law pursuant to s 430P. Section 430Q provides that an appeal on a question of law precludes other appeals. It states:
If a person appeals under this Division to the Supreme Court on a question of law, that person abandons finally and conclusively any right under this or any other Act to appeal to the County Court or the trial Division of the Supreme Court in relation to that proceeding.
Both an appeal under s 430P and an appeal pursuant to s 424 must be brought within 28 days after the day on which the final order complained of was made.[48] Section 430Q makes clear that both cannot be pursued. But the applicant has not made an appeal under s 430P on a question of law. Any appeal under s 430P had to have been issued by 14 February 2023 and then served within seven days.[49] If filed after that date it is deemed to be an application for leave to appeal. Leave may be granted where the Supreme Court is of the view that the failure to commence an appeal within the 28- day period was due to exceptional circumstances and that any other party to the appeal would not be materially prejudiced.
[48]Children, Youth and Families Act s 430P(3).
[49]Ibid s 430P(5).
On the first issue, the availability of a statutory appeal on a question of law, JV accepted that he had the ‘option’ of an avenue of appeal under statute but submitted there was no basis to refuse the relief because:
That he has chosen to seek judicial review is unremarkable. The arguments that would have been made under a statutory appeal are the same that have been made in this application; that the magistrate erred by providing inadequate reasons.[50]
[50]Plaintiff, ‘Plaintiff’s Submissions in Reply’, Submissions in JV v Children’s Court of Victoria & Anor S ECI 2023 01019, 25 September 2023, [17].
There is force in the respondent’s submission with respect to the availability of a statutory avenue of appeal on a question of law. Section 430P provides a grant of leave to appeal out of time, considering exceptional circumstances for the failure to commence within time and the question of prejudice. In these circumstances the commencement of a judicial review proceeding, within the 60-day limit but outside the 28-day limit for a statutory appeal, avoids a need for JV to obtain leave to appeal. However, it was not suggested that JV had overlooked or missed the s 430P time limit, particularly as the s 424 appeal was lodged in time.
This application, being for judicial review, engages the supervisory jurisdiction of the Court, which arguably avoids the effect of s 430Q on the County Court appeal that has been filed. The need for an appeal on its merit would fall away if the decision of the Children’s Court is set aside. If this proceeding were not successful in identifying error, it might well have been a matter for argument whether the County Court appeal could or should be maintained. While the respondent’s written outline includes a submission that the availability of other remedies may demonstrate that JV’s conduct is an abuse of process in this proceeding, this was not developed in any way.
The respondent’s submission relied principally on the Court of Appeal’s observation in Kuek v Victoria Legal Aid (‘Kuek’),[51] where Phillips JA said:
In my opinion, this Court should now affirm that, unless there are indeed exceptional circumstances, a litigant may not raise for determination under Order 56 – or at all events may not raise with any real chance of success – a matter or thing which is proper for determination on an appeal where that very litigant has a right of appeal under s.109. In other words, if the proper course is an appeal under s.109, albeit an appeal which is subject to the limitations imposed by that section, the litigant cannot choose at his or her option to turn to Order 56 as an alternative.
…
It is perhaps a moot point whether a case will arise in which it would be proper, despite the right of appeal conferred by s.109, to exercise the discretion in favour of relief by way of judicial review after error of law on the part of a magistrate, but I need not decide it. It is enough, that as at present advised, I would not altogether exclude it. As I have already said, such a case would surely depend upon exceptional circumstances. [52]
[51](2001) 3 VR 289 (‘Kuek’).
[52]Ibid 293-4.
However, the circumstances in Kuek were quite different to the present. Mr Kuek had concurrently sought leave to appeal out of time and relief by way of judicial review. Mr Kuek had commenced two appeals on a question of law, arising from a civil proceeding under s 109(1) of the Magistrates’ Court Act1989 (Vic). Those appeals were out of time and, on return of the summons to commence the appeals, the Master under r 58.09 of the Rules declined to entertain them. Mr Kuek then filed an originating motion seeking leave to commence the appeals out of time or in the alternative relief by way of judicial review under Order 56. Leave to extend time was refused. As to the alternative relief, none of the 15 grounds relied on were made out on review. Mr Kuek challenged both the dismissal of the review on its merits and the obiter decision that in any event relief would be declined in the exercise of discretion. The legal error relied on – that the Magistrate wrongly rejected Mr Kuek’s claim in contract – was said to be the very foundation of an appeal under s 109, which had been brought out of time and leave under s 109(4) refused. In those circumstances certiorari as relief in the alternative could not succeed where the appeal relief had failed. As was said in Kuek:
In substance the application for judicial review was no more and no less than the applicant’s attempt to appeal by another means and so much was tacitly acknowledged by the form of the originating motion in that it sought leave under s 109(4) and judicial review in the alternative. [53]
JV has not sought concurrent relief by way of statutory appeal and judicial review in the alternative.
[53]Ibid 292-3 (Phillips JA).
In Perkins v Victorian Bar Inc (‘Perkins’),[54] the Court of Appeal addressed the breadth of Phillips JA’s comments in Kuek. Perkins was an appeal against summary dismissal of an originating motion seeking judicial review of a finding of the Legal Profession Tribunal. The applicant for judicial review also had available, but did not have recourse to, a statutory right of appeal. By the time the originating motion was served, the Legal Profession Tribunal had been replaced and the applicant’s period of suspension had run its course.
[54][2007] VSCA 107.
In upholding an initial decision to summarily dismiss the judicial review proceeding as frivolous, vexatious and an abuse of process, Chernov JA said of Kuek:
I would also reject the applicant’s claim that his Honour proceeded on the basis that ‘extraordinary circumstances’ must be shown before the court will permit any prerogative action to proceed in circumstances where ‘some alternative right of appeal exists’. What his Honour relevantly said was that the principle enunciated by Phillips JA in Kuek ‘should guide the exercise of the discretionary power to dismiss the originating motion in this case as an abuse of process on the ground that at its hearing it will be dismissed because the plaintiff chose not to use the statutory appeal procedure’. His Honour did not say, and cannot be taken to have meant to have said, that this applies in every case where a prerogative proceeding is instituted where an appellate procedure was available.
…
But it is plain that the Court in Kuek considered that whether such a limitation should be imposed was a matter for the Court dealing with the issue.[55]
[55]Ibid [11], [14] (emphasis added).
I accept that ordinarily, where a statutory avenue for appeal is provided for, then it is that avenue rather than a proceeding under Order 56 that is the appropriate mechanism by which to obtain relief. Phillips JA’s comments in Kuek clearly state that the proper course is that of a statutory appeal. JV has not explained the ‘choice’ of judicial review instead of a statutory appeal beyond the submission that in substance the two avenues provide broadly for the same relief.
The respondent, by written submissions dated 11 September 2023, first raised the argument that discretionary relief ought be refused because JV had not availed himself of the appeal procedure provided by s 430P.
The respondent submitted that:
absent [JV] disclosing the existence of exceptional circumstances, the relief should be dismissed based upon the existence of an appeal under s 430P of the Children, Youth and Families Act.
The submission overstates the comment of Phillips JA for the reasons explained by Chernov JA. At hearing it remains a matter of discretion. To say that JV must disclose exceptional circumstances would effectively reverse the onus in relation to the exercise of the discretion.
It remains for the respondent to persuade this Court that relief should be refused notwithstanding that the error of law has been made out, as a matter of discretion in all the circumstances. Those circumstances include the lack of recourse to a statutory appeal on a question of law but this factor is not, and cannot be, determinative.
The second alternative remedy available to JV is that of an appeal on the merit conducted as a rehearing before the County Court. As explained above, the availability of a de novo hearing does not lessen the requirement to provide adequate reasons for the outcome of the hearing that has occurred. Whether that right of appeal provides an adequate alternate remedy is a separate question.
In the case of Garde-Wilson v Legal Services Board (‘Garde-Wilson’),[56] the Court of Appeal overturned a trial judge who had withheld relief in a judicial review for a failure to accord natural justice, on the basis that there was a right of review before VCAT. There, as here, the applicant had filed both a judicial review application and a review at VCAT which provided for a full de novo hearing. The trial judge whose decision came under appeal was not hearing the trial of the judicial review but hearing two preliminary questions, one of which was whether the originating motion be dismissed because of the existence of an adequate alternate remedy being a review at VCAT.
[56](2008) 19 VR 398.
Dodds-Streeton JA, with whom Nettle and Santamaria JJA agreed, said that the existence of an adequate alternative remedy, while a relevant factor, is not necessarily determinative.[57] Other factors were identified by her Honour:
One such factor is the involvement of an important legal question, which can only be determined finally by the court. Another factor is that the original decision was, or may have been, attended by a breach of natural justice. In such circumstances, an applicant for judicial review may be entitled to a fair decision below, together with the full panoply of appellate recourse which would ordinarily apply. To deny judicial review to a plaintiff who did not obtain natural justice in relation to the original decision, may be to deprive her of at least one level of appeal. Although the alternative tribunal may accord the plaintiff natural justice and afford in all other respects an adequate alternative remedy, a significant appellate option could be lost.[58]
[57]Ibid 415 [99].
[58]Ibid 415 [100].
Garde-Wilson was consistent with Kuek, which turned on the concurrence of substantially identical remedies in circumstances where the legislation prescribed conditions for an appeal had not been satisfied and leave refused. This is a different issue to entitlement to a fair decision below. The Court in Garde-Wilson relied on a statement of Megarry J in Leary v National Union of Vehicle Builders,[59] and concluded that although a right of appeal or review to determine all questions of fact and law that were before the original decision maker was a powerful discretionary consideration against granting prerogative relief, there are cases (of which Garde-Wilson’s complaint about the Legal Services Board was one) that nevertheless warrant intervention.
[59][1971] 1 Ch 34.
Consistent with Garde-Wilson, I have reached the conclusion that the availability of a de novo hearing, from which no appeal lies, is not of itself an adequate alternative remedy to a failure to provide adequate reasons for conviction following the trial such that relief should be refused as a matter of discretion.
Whilst the avenue of a statutory appeal also on a question of law, that being an error of law on the face of the record constituted by inadequate reasons, is the proper course, the question for me is whether, having taken a different course, relief should be refused despite the ground being made out. It raises the question of how the relief sought, quashing the order and remittal for rehearing in the Childrens’ Court, is impacted by a decision to proceed under Order 56 rather than appealing pursuant to s 430P. There is nothing before me to explain the reason for the choice made. Unlike Garde-Wilson, where an appeal under statute went to the Court of Appeal, the appeal on a question of law and a review under Order 56 are both brought before the trial division. The respondent pointed only to the existence of alternate relief but developed no submissions that the conduct of JV or his advisors or any delay occasioned were matters relevant to the exercise of discretion. JV submitted in effect that there was no difference between this and his rights under the appeal mechanism.
Both parties submitted, and I agree, that remittal for further reasons is not appropriate.
I am not persuaded that in all the circumstances the relief sought by JV should be withheld. In circumstances where JV has been convicted of serious criminal charges occurring when he was a minor, and where he has not been provided with adequate reasons for those findings as an incident of the judicial function in pronouncing his guilt, I propose to exercise my discretion to grant the relief sought. Given the conclusion that the reasons are inadequate to permit the accused, or this Court, to understand the reasoning process that led to conviction, and thereby to see if that path of reasoning was in accordance with law, there seem to me to be compelling reasons to grant relief that would do no more in broad terms than provide relief consistent with that the accused could have obtained by a statutory appeal. To my mind this proceeding is one where it is proper, despite the right of appeal under s 430P that existed, to grant relief by way of orders in the nature of certiorari.
Subject to any further submissions, I will make orders quashing the Magistrate’s orders and remitting the matter back to the Children’s Court to be heard before a different magistrate. I will hear from the parties on the question of costs.
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