| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S CI 2019 05898
| ANNI KARTAWIDJAJA | Plaintiff |
| v | |
| DONNA ROWE | First Defendant |
| and | |
| COUNTY COURT OF VICTORIA | Second Defendant |
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JUDGE: | TAYLOR J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 23 September 2020 |
DATE OF JUDGMENT: | 31 March 2021 |
CASE MAY BE CITED AS: | Kartawidjaja v Rowe & Anor |
MEDIUM NEUTRAL CITATION: | [2021] VSC 143 |
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JUDICIAL REVIEW – Application for Certiorari – Plaintiff charged with and convicted of offences of allowing or continuing to allow a non-citizen to work in breach of a visa – Finding that the charges were known to the law – Finding that the charges were not duplicitous, uncertain or ambiguous – Finding that the date on which the offences were committed was not a material allegation – Whether findings amounted to an error on the face of the record – Charges were latently ambiguous – Error established – Judicial review granted – Migration Act 1958 (Cth), s 245AC(1) – Johnson v Miller (1937) 59 CLR 467; S v The Queen (1989) 168 CLR 266; Walsh v Tattersall (1996) 188 CLR 77 applied.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr G Nash QC | Access Law |
| For the First Defendant | Mr K Armstrong | Office of the Commonwealth Director of Prosecutions |
HER HONOUR:
This is an application for judicial review of a decision of the County Court of Victoria in which the plaintiff was convicted of nine charges of allowing or continuing to allow a non-citizen to work in breach of a visa condition.
By originating motion dated 20 December 2019 the plaintiff seeks an order of, or in the nature of, Certiorari quashing the order of the County Court by which she was convicted and fined.
The plaintiff alleges his Honour Judge Smith erred in finding that the charges preferred by the first defendant were not unknown to the law nor duplex, uncertain or ambiguous. The plaintiff argues further that his Honour erred in concluding that the date on which the offences were committed was not a material allegation or an essential part of the offence as charged.
The application raises complex issues of statutory construction and criminal pleading.
For the reasons that follow, the application is granted.
History of the Proceedings
This is a matter with an extended history.
Magistrates’ Court
In July 2013 the plaintiff was charged with 22 offences contrary to s 245AC(1) of the Migration Act 1958 (Cth) (‘Act’).
On 17 September 2013 the office of the Commonwealth Director of Public Prosecutions (‘CDPP’) served the plaintiff with 111 charges. These were ‘unrolled’ charges and replaced the original 22 charges.
The 111 charges were heard by the Magistrates’ Court of Victoria over a number of days in August 2014. On 3 February 2015 the magistrate found all 111 charges proven. On 31 March 2015 the plaintiff was convicted and fined an aggregate sum of $75,000.
The plaintiff appealed to this Court on a…
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- AGLC
- Kartawidjaja v Rowe [2021] VSC 143
- Case
- [2021] VSC 143
- Decision Date
CaseChat Overview and Summary
The central legal issue before the court was whether the findings made by the defendant in convicting the plaintiff were erroneous on the face of the record. Specifically, the plaintiff argued that the charges against him were latently ambiguous, contrary to the findings of the defendant. The plaintiff also contended that the date on which the offences were committed was a material allegation, which was not adequately addressed by the defendant. The court had to determine whether these alleged errors warranted the grant of judicial review.
The court held that the charges against the plaintiff were indeed latently ambiguous, contrary to the defendant's findings. The ambiguity arose from the fact that the charges did not specify the precise dates on which the offences were committed, which the court found to be a material element of the charges. The court found that this ambiguity amounted to an error on the face of the record, as it undermined the clarity and certainty required for a valid conviction. The court further held that the failure to address the date of the offences was also an error, as it affected the fundamental fairness of the proceedings. The court granted the plaintiff's application for judicial review, setting aside his convictions.
The court ordered that the convictions of the plaintiff be quashed and that the matter be remitted to the Federal Magistrates Court for further proceedings. The court's decision was based on the finding that the errors identified in the defendant's findings were material and affected the outcome of the proceedings. The court's reasoning was grounded in the principles of legal certainty and procedural fairness, which are essential to the administration of justice.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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