Kassionis v Magistrates' Court of Victoria

[2002] VSC 65

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 7731 of 2001

NICK KASSIONIS	Plaintiff
v
THE MAGISTRATES' COURT OF VICTORIA AND CONSTABLE ADAM HANLEY	Defendants

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JUDGE:	PAGONE, J
WHERE HELD:	MELBOURNE
DATE OF HEARING:	14 MARCH 2002
DATE OF JUDGMENT:	20 MARCH 2002
CASE MAY BE CITED AS:	KASSIONIS v. MAGISTRATES' COURT
MEDIUM NEUTRAL CITATION:	[2002] VSC 65

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CATCHWORDS:      Whether a Magistrate refused/failed to accord procedural rights, joinder of offences, provision of witness statements, signed witness statements, adequate particulars of charges, written confirmation of amendment to charges – Magistrates Court Act 1989 - Schedule 2, s.51.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	In Person
For the Second Defendant	Mr. Kayser	Solicitor for Public Prosecutions

HIS HONOUR:

1. The plaintiff in this proceeding seeks orders of, and in nature of, certiorari and prohibition in relation to orders and rulings made by a Magistrate on 7 August 2001. The plaintiff is charged with offences under ss.76(1) and 91(1) of the Crimes Act 1958. It is alleged in those proceedings that he entered a secondary school as a trespasser with intent to steal and in possession of articles for use in the course of a burglary. On 7 August 2001 he appeared in person as the defendant in a contested mention hearing in the Magistrates' Court at Sunshine presided by Magistrate Ms. Wakeling. The plaintiff, who also appeared in person before me, now complains in this proceeding about rulings made by the Magistrate on that day.

1. The first complaint is that the Magistrate refused or failed to accord the plaintiff significant procedural rights by listing the burglary charges already referred to on the same day as a charge under s.30(1) of the Bail Act 1977 alleging that the plaintiff had failed to appear in accordance with his bail undertaking on 19 April 2001. The plaintiff at first contended before me that the burglary offences and the bail offences had been joined contrary to s.31 of the Magistrates' Court Act 1989. In fact the evidence discloses that there has not been a joinder of the offences and that the Magistrate has done no more than to have adjourned all three charges together in the express contemplation that the Magistrate dealing with the matters on the day will be able to deal with such application as the plaintiff may wish to make concerning their hearing.

1. The plaintiff draws attention to substantial and serious prejudice that he may suffer if the bail charge were to be heard at the same as the burglary charges.  Counsel for the second defendant correctly accepted that a Magistrate hearing the bail charge should not permit cross-examination of the plaintiff in the bail matter about matters which stray into the burglary charges.  There is, I think, much force in the plaintiff's claim that the bail charge should not be heard at the same as the burglary charges, however, the fact is that the Magistrate did not decide that they should be heard together.  Accordingly, the plaintiff does not make out this claim. 

1. The second complaint is that the Magistrate erred in not ordering the prosecution to provide him with a statement regarding the proposed testimony of a key prosecution witness. The witness in question is a Constable Campbell who it seems is likely to give evidence corroborating the primary evidence of the second defendant in these proceedings (and is the informant in the burglary and bail charges). The provision of such information is an important aspect of the proper conduct of criminal proceedings. Section 51 of the Magistrates' Court Act 1989 provides that the hearing and determination of summary offences "must" be conducted in accordance in the terms of schedule 2. Schedule 2 contains provisions for the pre-hearing disclosure of the case against an accused including the provision of copies of statements of claim and written summaries of the substance of evidence likely to be given. The significance attaching to the word "must" in such a provision was considered in Brygel v. Stewart-Thornton[1]. In the case before me the relevant question is whether, as a question of fact, there has been substantial compliance with the obligations imposed by schedule 2 of the Magistrates' Court Act 1989. In my view there has. The plaintiff has been given a witness list identifying Mr. Campbell as a witness containing a summary of the evidence which he is to give. There is no evidence of any written statement by Mr. Campbell which has not been supplied to the plaintiff.

   [1][1992] 2 VR 387, esp. 398-400

1. A related complaint by the plaintiff was that he had not been given a signed copy of a statement by the Headmaster. Counsel for the second defendant accepted that such information should be given pursuant to schedule 2 of the Magistrates' Court Act 1989 but said that it had been provided. The plaintiff accepted that he had been provided with an unsigned copy but claimed that he was entitled to receive a signed copy. There is no evidence that there exists any version of the statement by the Headmaster other than in the form in which the plaintiff has received it. Accordingly, I find that the plaintiff has not established any error on the part of the Magistrate in not ordering any further statement regarding the proposed testimony of the Headmaster or Mr. Campbell.

1. The third complaint by the plaintiff is that he has not been supplied with adequate particulars of the burglary charges.  The summary of charges identifies the location at which it is alleged that the plaintiff was discovered and localises the place in particular as the "trade wing" of the school where it is said that the police observed the plaintiff "hiding under a table in the classroom".  It seems to me that this description identifies the place sufficiently for the requirements of natural justice[2].  The plaintiff has been informed of the address of the school at which it is alleged that he was apprehended and has been told in particular in which part of that establishment it is said that he was found.  On the material available to me I am satisfied that this is a sufficient particularisation of the place which may need to be identified. 

   [2]R. v. Magistrates' Court [1976] VR 680 at 683; Quai Hoi v. Larkman (unreported, 29 August 1995) Byrne, J., pp.4-6;  Quai Hoi v. Larkman (unreported, Court of Appeal, 19 February 1997) pp.7-9

1. The final complaint is that the plaintiff was not provided with written confirmation of an amendment made to the charge of burglary.  The issue arose from a submission by the plaintiff before the Magistrate that the information should specify whether the offence was said to have been committed by entering "a building" or, alternatively, "part of a building".  His submission to the learned Magistrate was that the charge should specify whether it be a building or a part of a building but not both without the charge being "bad for duplicity".  The Magistrate sought a response from the Sergeant who informed the Magistrate, and therefore also the plaintiff in open court, that he was content for the charge sheet to leave the words as merely "a building" deleting the reference to "part of a building".  The plaintiff subsequently sought the Magistrate to order that the prosecution provide information to him in writing confirming that amendment.  The Magistrate declined to do so on the basis that it had been provided to him in open court that day and on an occasion when he had the opportunity to take notes and when the changes had been recorded on the Court record.  I agree.  The transcript of the proceeding before the Magistrate appears to indicate that the plaintiff also agreed at the time but, whether he did or not, the Magistrate was, in my view, correct in her conclusion. 

1. Accordingly, I dismiss the plaintiff's motion and will hear the parties on the question of costs.

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