Keech v County Court of Victoria
[2017] VSC 525
•4 SEPTEMBER 2017
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S CI 2016 02191
| WILLIAM KEECH | Plaintiff |
| v | |
| THE COUNTY COURT OF VICTORIA | First Defendant |
| - and - | |
| FRANCIS JOHN DUFFY | Second Defendant |
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JUDGE: | RIORDAN J |
WHERE HELD: | MELBOURNE |
DATE OF HEARING: | 22 MAY 2017 and 30 AUGUST 2017 |
DATE OF JUDGMENT: | 4 SEPTEMBER 2017 |
CASE MAY BE CITED AS: | Keech v County Court of Victoria |
MEDIUM NEUTRAL CITATION: | [2017] VSC 525 |
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CRIMINAL LAW – Jurisdiction and powers of County Court – Appeal from Magistrates’ Court – Alternative charges – Plaintiff convicted and sentenced by Magistrates’ Court – Alternative charge dismissed – Appeal against conviction and sentence on principal charge – Nature of appeal to County Court – Hearing de novo – Whether County Court has jurisdiction to convict of a charge dismissed in accordance with s 51(1) of the Interpretation of Legislation Act 1984 (Vic)?
ORDERS – Whether a charge dismissed not on the merits is an interlocutory or final order?
CRIMINAL PROCEDURE – Does County Court have power to correct an unintended error by the Magistrate? Criminal Procedure Act 2009 (Vic) ss 254, 256 and 412 considered.
ADMINISTRATIVE LAW – Admissibility of transcript of Magistrates’ Court proceeding to determine whether there was a jurisdictional error of County Court.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr G W Casement | Tyler Tipping & Woods |
| For the Second Defendant | Mr C B Boyce SC | Mr John Cain, Solicitor for Public Prosecutions |
INDEX
Background facts
Legislative provisions
Nature of the appeal
Submissions of the plaintiff
Sections 254 and 256(c) of the CrimPA
Double jeopardy and autrefois acquit
Submissions of the defendant
Further submissions of the parties
Is the transcript of the hearing before the Magistrate admissible?
Is the County Court file admissible?
Did the dismissal of charge 5 by the Magistrate constitute an acquittal?
Did a dismissal by the Magistrate preclude a reinstatement of the charge by the Magistrate and therefore the County Court pursuant to s 256(2)(c) of the CrimPA?
If there was a jurisdictional error by the Trial Judge, should the matter be sent back for determination in accordance with law or should the orders made be simply set aside?
Decision
There was no error by the County Court Judge on the face of the record
The transcript of the hearing before the Magistrate and the certified extract of the Magistrates’ Court register, both of 18 February 2016, are admissible
As a matter of fact, the Magistrate did not dismiss charge 5 on the merits
The fact that the Magistrate ‘cleared the summons’ by ‘dismissing’ rather than ‘striking out’ charge 5 does not distinguish Quick because, under s 256(2)(c) of the CrimPA, the County Court had the power to reinstate charge 5
The County Court had the power to amend the order of the Magistrate and reinstate charge 5
Inherent Power
Power under s 412 of the CrimPA
The County Court has jurisdiction to convict of a charge dismissed in accordance with s 51(1) of the Interpretation of Legislation Act 1984
Principles of statutory construction
Application of the principles
Order
HIS HONOUR:
By amended originating motion between parties filed 4 July 2016, the plaintiff seeks relief under O 56 of the Supreme Court (General Civil Procedure) Rules 2015. In substance, it seeks to set aside a conviction entered in the County Court of Victoria sitting at Moe on a charge of soliciting a child under the age of 16 years to take part in an indecent act outside marriage with him in January 2015 in breach of s 58(1) of the Crimes Act 1958 and consequential orders.
Background facts
A brief summary of the facts giving rise to the offences, which is sufficient for the purpose of this application, is as follows:
(a)While the child was staying at the plaintiff’s house he said to her ‘When I get drunk, I get horny as hell. Would you be able to flash your tits or something on your body to, like, wank over it?’ After the minor said ‘No’, the plaintiff said ‘Good girl for saying no’ (‘the First Request’).
(b)After about 10 minutes, the plaintiff said ‘Please … I’m desperate as – I’m desperate as hell. I’ll pay you some money’. He repeated the same statement on a number of occasions and on each occasion the child refused (‘the Second Request’).
By charge sheet (‘the Charge Sheet’) issued by the second defendant (‘the defendant’), as informant, on 11 August 2015, the plaintiff was charged with the following:
Charge 1Procuring a child under the age of 16 years to take part in an indecent act outside marriage with him contrary to s 58(1) of the Crimes Act 1958 (based on the First Request).
Charge 2Attempting to commit an indictable offence; namely, an indecent act in the presence of a child aged 16 years, contrary to s 321M of the Crimes Act 1958 (based on the First Request).
Charge 3Wilfully committing an indecent act with a child under the age of 16 years to whom he was not married contrary to s 47(1) of the Crimes Act 1958 (based on now irrelevant facts).
Charge 4Attempting to commit an indictable offence; namely, procure a child under 16 years for an indecent act contrary to s 321M of the Crimes Act 1958 (based on the Second Request).
Charge 5Soliciting a child under the age of 16 years to take part in an indecent act outside marriage with him contrary to s 58(1) of the Crimes Act 1958 (based on the Second Request).
According to the certified extract from the Registrar of the Magistrates’ Court dated 18 February 2017, the results of the hearing before the Magistrate were as follows:
(a) With respect to charge 1 the extract records:
Dismissed.
MERITS OF THE CASE.
(b) With respect to charge 2 the extract records:
Convicted and sentenced to an imprisonment term of 6 MONTHS.
This is part of an aggregate sentence.
Concurrent with other State sentences imposed in this case.
This is part of an aggregate sentence.
Effective total State term imposed is 6 months.
(c) With respect to charge 3 the extract records:
Convicted and sentenced to an imprisonment term of 6 MONTHS.
This is part of an aggregate sentence.
Concurrent with other State sentences imposed in this case.
This is part of an aggregate sentence.
The accused has been sentenced to a registrable offence pursuant to the Sex Offender Registration Act 2004.
The accused is to report to Victoria Police for a period of 8 YEARS.
Effective total State term imposed is 6 months.
(d) With respect to charge 4 the extract records:
Convicted and sentenced to an imprisonment term of 6 MONTHS.
This is part of an aggregate sentence.
Concurrent with other State sentences imposed in this case.
This is part of an aggregate sentence.
Effective total State term imposed is 6 months.
(e) With respect to charge 5 the extract records:
Dismissed.
MERITS OF THE CASE.
By notice of appeal dated 18 February 2016, the plaintiff appealed to the County Court pursuant to s 254 of the Criminal Procedure Act 2009 (‘the CrimPA’). The notice gave the following details of the proceeding appealed from:
1. Venue of the Magistrates’ Court appealed from LATROBE VALLEY 2. Plea entered in Magistrates’ Court Adjourned 3. Date of Conviction(s)/Orders 18/02/2016 4. Nature of Offence(s)/ Proceedings 5. Particulars of Order(s) / Sentence(s) 2 ATTEMPT TO COMMIT INDICTABLE OFFENCE IMP (A) – Convicted and sentenced to 6 months imprisonment
– This is part of an aggregate sentence
– Concurrent with other State sentences imposed in this case
3 INDECENT ACT WITH CHILD UNDER 16 IMP (A) – SEE CHARGE 2 4 ATTEMPT TO COMMIT INDICTABLE OFFENCE IMP (A) – SEE CHARGE 2 IMP - SUM – Effective total State term imposed is 6 months
The appeal to the County Court was heard before his Honour Judge Smallwood on 3 May 2016. At the outset of the appeal his Honour said:
Firstly, it seems that once I set aside the Magistrates’ Court orders all the charges from the Magistrates’ Court are before me again. There is no doubt about that, having read the decision of Quick.[1]
Neither counsel contested his Honour’s proposition.
[1]Quick v Creanor (2015) 49 VR 479 (Maxwell P, Beach and Kaye JJA) (‘Quick’).
The prosecution did not press charge 1.
Charge 2 was particularised as relating to the First Request and counsel for the appellant submitted that the requests were part of a continuous course of events. His Honour dismissed the charge.
With respect to charge 3 (which relates to the facts to which I have not needed to refer), the Judge found that, although he accepted the evidence of the child, he was not satisfied that the facts constituted an indecent act.
Charges 4 and 5 were alternative charges which related to the Second Request. The Judge found the plaintiff guilty of charge 5 after the following exchange with counsel:
[Counsel for the appellant]: Thank you, Your Honour. Then with regard to, it becomes a question of whether it is Charge 4 or 5, as I understand they are run in the alternative, in terms of the, if Your Honour was satisfied that the conduct occurred, in my submission the solicit charge is the charge that's made out again, the attempt -
HIS HONOUR: In my view, I can say this to you, I accept what she says about the shower and I said what she says about the first request, but it is the way she has expressed it that it seems to have been translated further into, ‘Will you’, in fact, it is, ‘Would you be able to?’, which is different, but once I accept beyond reasonable doubt that the references to the money were made, and paying her and how much and that type of thing and that’s in conjunction with the suggestion, or opening gambit on what she describes as occurred earlier, in those circumstances I find that, I think in this situation, bearing in mind I accept the mother’s evidence she said, ‘You're drunk, I will talk to you tomorrow’, there is no suggestion that he didn’t tell [the child] that he hadn’t had a drink for a long time, so I think in those circumstances I’m not going to buy into arguments of me speculating about intent, but I think Charge 5 is clearly made out, in my view.
[Counsel for the appellant]: If Your Honour pleases.
HIS HONOUR: So in that scenario I then, what do I do, just find him guilty of Charge 5.
Accordingly, the Judge dismissed charge 4 and convicted on charge 5. The result of the appeal, as recorded in the order, was as follows:
Registrar’s No
Order/Conviction Appealed Against
Sentence Appealed Against
Result of Appeal
AP-16-0394 1. PROCURE FOR SEX.PEN OF CHILD UNDER16
2. ATTEMPT TO COMMIT INDICTABLEOFFENCE
3. INDECENT ACT WITH CHILD UNDER 16
4. ATTEMPT TO COMMIT INDICTABLE OFFENCE5. SOLICIT CHILD U16 INDECENT ACT
WITH SELF
Charge 1
Dismissed.
Charge 2
Aggregate 6 MONTHS imprisonment. Concurrent. Effective total State term imposed is 6 months
Charge 3
Aggregate 6 MONTHS imprisonment. Concurrent. Effective total State term imposed is 6 months
Charge 4
Aggregate 6 MONTHS imprisonment. Concurrent. Effective total State term imposed is 6 months
Charge 5
Dismissed.
Charge(/s) 2, 3, 4, 1
The orders imposed at the Magistrates' Court of Victoria on 18/02/2016 are set aside, and in their stead the following orders are made: Charge/s Dismissed
Charge(/s) 5
The orders imposed. at the Magistrates' Court of Victoria on 18/02/2016 are set aside, and in their stead the following orders are made: Charge/s Proven
Charge(/s) 5
Convicted and order that WILLIAM KEECH pay a fine in the sum of $2,000.00.Order that WILLIAM KEECH pay the amount outstanding to the Registrar of the County Court.
Order that WILLIAM KEECH is granted a stay to 08/08/2016.
By the originating motion in this proceeding, the plaintiff claimed the following relief:
i.An order in the nature of certiorari removing into this Honourable Court the orders made in respect to Charge 5 of the orders made by the firstnamed defendant made on 3 May 2016 for the purposes of setting aside the conviction.
ii. A declaration that:
a.the conviction and sentence imposed by the firstnamed defendant was unlawful; and
b.the firstnamed defendant made an error of law on the face of the record by convicting the plaintiff of a charge 5 on the basis that charge 5 was not before the Court on the hearing of the appeal.
iii. An order quashing the conviction recorded in respect of charge 5.
iv. An order setting aside the sentence imposed in respect of charge 5.
v.An order setting aside the order made by the Magistrates’ Court of Victoria on 18 February 2016 under the Sex Offender Registration Act 2004.
vi. Such further or other orders as the Court deems fit.
vii.An order that the defendant pay the plaintiff’s costs of this proceeding.
At the trial, the plaintiff relied on only the following ground:
The firstnamed defendant made an error of law on the face of the record by convicting the plaintiff of charge 5 on the basis that charge 5 was not before the Court on the hearing of the appeal and accordingly that it was not open to the firstnamed defendant to convict the plaintiff of that charge.
In oral submissions, the plaintiff’s counsel clarified that the relief was in fact sought on the basis that, as the dismissal of charge 5 on its merits was not the subject of the plaintiff’s appeal, the County Court had no jurisdiction to convict the plaintiff on charge 5.
At the trial of this matter on 22 May 2017, counsel for the defendant challenged the accuracy of the certified extract from the Magistrates’ Court and in particular the fact that charge 5 had been dismissed on its merits. Accordingly, I made the following orders for the filing of further evidence and submissions.
1.Each party has leave to file and serve further evidence as to the material before Judge Smallwood.
2.The defendants have leave to file and serve the transcript of the hearing before the Magistrate without prejudice to arguments about admissibility.
3.The defendants have leave to file and serve further submissions by 5 June 2017 with respect to:
(a)the admissibility of the transcript of the hearing before the Magistrate; and
(b)the admissibility of the County Court file;
(c)whether the dismissal of charge 5 by the Magistrate constituted an acquittal;
(d)whether a dismissal by the Magistrate would preclude reinstatement of the charge by the Magistrate and therefore the County Court pursuant to s 256(2)(c) of the Criminal Procedure Act 2009;
d)whether, if there was jurisdictional error by the trial judge, the matter should be sent back for determination in accordance with law; or whether the orders made should be simply set aside.
4.The plaintiff has leave to file and serve a reply by 19 June 2017 at 4:00 pm.
Legislative provisions
The plaintiff’s right of appeal was under div 1 of pt 6.1 of the CrimPA which relevantly provides as follows:
254 Right of appeal
A person convicted of an offence by the Magistrates’ Court in a criminal proceeding conducted in accordance with Part 3.3 may appeal to the County Court against—
(a) the conviction and sentence imposed by the court; or
(b) sentence alone.
Note: See the definitions of conviction and sentence in section 3.
…
256 Determination of appeal
(1)An appeal under section 254 must be conducted as a rehearing and the appellant is not bound by the plea entered in the Magistrates’ Court.
(2)On the hearing of an appeal under section 254, the County Court—
(a)must set aside the sentence of the Magistrates’ Court; and
(b)may impose any sentence which the County Court considers appropriate and which the Magistrates’ Court imposed or could have imposed; and
(c)may exercise any power which the Magistrates’ Court exercised or could have exercised.
…
It is notable that the Director of Public Prosecutions (‘the DPP’) also has a statutory right to appeal against a sentence imposed by the Magistrates’ Court to the County Court under s 257 of the CrimPA.
Nature of the appeal
The word ‘rehearing’ in the section has been interpreted as meaning that the hearing in the County Court is a hearing de novo.[2]
[2]DPP v Fricke [1993] 1 VR 369, 374; Quick (2015) 49 VR 479, 483 [19].
In Quick,[3] the Court of Appeal considered the question of ‘whether s 256(2)(c) of the CrimPA empowers the County Court to reinstate charges struck out by the Magistrates’ Court in the course of the original criminal proceedings’.[4]
[3](2015) 49 VR 479.
[4]Ibid 482 [14]. The question was reserved by the County Court Judge to the Court of Appeal by way of a case stated, pursuant to s 302A of the CrimPA.
The Court considered the question with respect to two appeals, the relevant facts of which were respectively as follows:
(a)Ms Quick was charged with driving in a manner dangerous causing serious injury, driving in a manner dangerous, careless driving and failing to stop at a stop sign or stop line. She was convicted of the first of those charges being the principal charge in the Magistrates’ Court and the other three alternatives were each struck out. Quick appealed to the County Court against conviction and sentence.
(b)Ms Taylor was charged with 11 counts of contravening a personal safety intervention order and one charge of stalking. She pleaded guilty in the Magistrates’ Court to one ‘rolled up charge’, covering different contraventions on different days, which had originally founded the individual charges that had been brought against her, and one charge of stalking.[5] The individual charges were struck out and Ms Taylor sentenced to a term of imprisonment. She appealed to the County Court against conviction and sentence.
[5]Ibid 480 [3].
The Court answered the question in the affirmative for the following reasons:
(a)An order striking out is merely a direction to remove the matter from the list of matters for hearing[6] and could therefore be reinstated by the Magistrates’ Court.[7]
(b)Accordingly, the Court concluded that the County Court was in the same position as the Magistrates’ Court and was able to exercise the same powers of reinstatement ‘just as the Magistrates’ Court could have done’.[8]
(c)The Court further stated that the ‘conclusion is reinforced by the nature of an appeal to the County Court’ because the Magistrates’ Court’s orders must be ‘formally set aside … or deemed to be set aside’.[9] Although the requirement of the County Court to ‘set aside the sentence’ set out in s 256(2)(a) of the CrimPA does not extend to setting aside striking out orders, the power of reinstatement was conferred by s 256(2)(c).
(d)Thirdly, the Court considered a narrow construction of s 256(2)(c) of the CrimPA would produce anomalous consequences because the striking out of alternative charges is necessary after a defendant is convicted of the principal charge – ‘in that sense “clearing” the summons’.[10]
[6]R v McGowan [1984] VR 1000, 1002 (Kaye J).
[7]DPP v Moore (2003) 6 VR 430, 437 [20].
[8]Quick (2015) 49 VR 479, 483 [18].
[9]Ibid 483–4 [20]–[21], citing Helfenbaum v Sattler [1999] 3 VR 583, 587.
[10]Ibid 484 [24].
Submissions of the plaintiff
Sections 254 and 256(c) of the CrimPA
The plaintiff submitted that the certified extract discloses that the Magistrates’ Court dismissed the plaintiff of charge 5, meaning that the County Court could not validly reinstate charge 5 on the hearing of the appeal.
The plaintiff relied on the wording of s 254 of the CrimPA, which is set out at [16] and provides for the right of a person to appeal against a conviction and sentence, or sentence alone, imposed by the Magistrates’ Court.
Section 3 of the CrimPA defines ‘conviction’ as including ‘a finding of guilt by a Court, whether or not a conviction is recorded’.[11] The plaintiff submitted that, where a charge is dismissed in the course of proceedings before the Magistrates’ Court, it cannot fall within the definition of conviction and therefore ‘does not meet the requirements for entry into the appellate jurisdiction of the County Court’.
[11]CrimPA (Vic) s 3.
Accordingly, a dismissal of charge 5 on the merits precluded the County Court from reinstating that charge on the hearing of the appeal. He argued that this was in contrast with charges that are ‘struck out’ in the course of proceedings in the Magistrates’ Court.
On this basis, the plaintiff distinguished Quick,[12] discussed at [19]–[21] above, which affirmed the well settled principle that a charge struck out without adjudication is not a curial determination of a charge and nor does it put an end to the proceedings.[13] The plaintiff submitted that Quick[14] is ‘not a case with charges subject to an acquittal and/or dismissal’.
[12](2015) 49 VR 479.
[13]Ibid 482–3 [15].
[14]Ibid.
Double jeopardy and autrefois acquit
In the alternative, the plaintiff submitted that the retrial of charge 5 in the County Court is inconsistent with the principle of double jeopardy because the plaintiff had already been acquitted of the charge. The plaintiff argued that an acquittal by a Magistrates’ Court has the same effect as an acquittal by jury following trial on indictment and, therefore, the principle of double jeopardy applied to the appeal process under s 254 of the CrimPA.
Submissions of the defendant
The defendant submitted that the hearing of the appeal by the County Court was in the nature of a hearing de novo, meaning ‘everything which happened in the Magistrates’ Court is to be disregarded on the hearing of the County Court appeal’. It was argued that merely commencing a hearing of a de novo appeal causes ‘the order of the Magistrates’ Court … [to] … be set aside’ so that ‘there should no longer be any order on foot in respect of the matter at the time the hearing of the appeal commences before the County Court’.[15]
[15]Helfenbaum v Satler [1999] 3 VR 583, 587.
In accordance with Quick,[16] the defendant submitted that the County Court is not confined to determining the charges upon which a conviction was sustained and against which the appeal was brought. The appellate jurisdiction was said to extend so as to permit the County Court to re-instate alternative charges struck out by the Magistrates’ Court; and that Quick[17] stands for a broad statement of principle that applies in the interpretation of appeal provisions.
[16](2015) 49 VR 479.
[17]Ibid.
In oral submissions, counsel for the defendant argued that notwithstanding what had been noted on the certified extract, the plaintiff had not been acquitted of charge 5. He submitted that, when regard is had to the substance of charges 4 and 5 and the evidence led in support of those charges, it is apparent that those charges were in fact laid in the alternative.
Counsel for the defendant submitted that both charges 4 and 5 have the same factual substratum; namely, the Second Request identified at [2(b)]. He argued that charges 4 and 5 ‘come at the same activity in two different ways’. Charge 4 is an attempt to procure a child to commit an indecent act; and charge 5, put alternatively, is a charge of soliciting the child to take part in an indecent act. Any attempt to procure in the circumstances, it was said, would have to amount to a solicitation.
The Magistrate therefore had two charges before it that were referrable to the same conduct. The defendant submitted that the Magistrate could not find the plaintiff guilty on both charges because that would involve patent duplicity; therefore, there was no other conclusion open to the Magistrate apart from one asserting that charge 5 was effectively ‘struck out’ (albeit in substance, but not in form).
Further submissions of the parties
For reasons outlined at [15], at the hearing on 22 May 2017 I ordered that the parties provide further submissions. I summarise the parties’ submissions on those issues as follows.
Is the transcript of the hearing before the Magistrate admissible?
The plaintiff submitted that the transcript is not admissible because his claim does not emanate from the Magistrates’ Court. He argued that the certified extract discloses that charge 5 was dismissed on the merits, which is sufficient to make out jurisdictional error, and that the Court should not look behind the record. The error was said to be on the face of the record and that to consider the transcript of the hearing before the Magistrates’ Court would ‘not [be] a proper pathway to establish what the Magistrate did in the circumstances’.
If the transcript is deemed admissible, the plaintiff submitted that the Magistrates’ Reasons reveal that the certified extract was consistent with the reasons because on two occasions the Magistrate stated that charge 5 was ‘dismissed’ and did not make reference to striking out charge 5.
The defendant submitted that the transcript is admissible because it ‘bears upon the matter of fact that the plaintiff must establish in order to make good his case’; namely, that the plaintiff was acquitted of charge 5.
The defendant submitted that the error complained of is jurisdictional and not an error on the face of the record, meaning that the Court ought not be confined to the record before the County Court. He therefore argued that the plaintiff’s case ‘must be examined in the context of all relevant materials and evidence in order to determine whether the historical fact contended for is a true reflection of the actual state of affairs’.
The defendant submitted that, when regard is had to the transcript, it is clear that the Magistrate did not acquit the applicant of charge 5, but instead found charge 5 proven and struck this charge out as an alternative; and referred the Court to the various transcript references supporting this conclusion.[18]
[18]Transcript of Magistrates’ Court (18 February 2016) 7–11, 13–15.
Is the County Court file admissible?
The plaintiff submitted that the County Court file is admissible and that it reveals that the dismissal was before the County Court.
The defendant submitted that the County Court file is admissible for the reasons expressed at [36]–[38] above.
Did the dismissal of charge 5 by the Magistrate constitute an acquittal?
The plaintiff submitted that the dismissal of charge 5 by the Magistrate was an acquittal and referred the Court to s 178(6) of the Evidence Act 2008, which defines acquittal to include a dismissal. It was further submitted that the following reasoning supports a conclusion that the dismissal was an acquittal:
(a)the order was made following a contested hearing in which evidence was heard;
(b)the certified extract of the Magistrates Court records that charge 5 was ‘Dismissed. MERITS OF THE CASE’, which means acquittal; and
(c)the certificate is evidence of an acquittal and the orders recorded a dismissal on the merits.
The defendant submitted that, as a matter of substance and notwithstanding the terminology employed by the Magistrate, the transcript confirms that the dismissal of charge 5 disclosed on the certified extract was not an acquittal.
It submitted that despite the transcript recording the Magistrate as stating ‘I am dismissing charges 1 and 5’, the discussion that occurred between the Magistrate and counsel reveal that charges 4 and 5 were put forth in the alternative; and that charge 5 was proven but ‘dismissed’ in order to avoid patent duplicity.
Did a dismissal by the Magistrate preclude a reinstatement of the charge by the Magistrate and therefore the County Court pursuant to s 256(2)(c) of the CrimPA?
The plaintiff submitted that the dismissal precludes reinstatement of charge 5 because, in contrast to an order striking out a charge, a dismissal of a charge is a final order.[19] He distinguished Quick[20] on the basis that charges in that case were struck out and therefore capable of reinstatement.
[19]R v McGowan [1984] VR 1000, 1002–3; DPP v Moore (2003) 6 VR 430, 437–8 [20].
[20](2015) 49 VR 479.
The defendant submitted that the ‘dismissal’ of charge 5 does not preclude a reinstatement of the charge. In circumstances where the Magistrate found charge 5 proven, but neither convicted nor acquitted the plaintiff of this charge, it must be determined that in substance the Magistrate struck out charge 5. It follows, therefore, that pursuant to s 256(2)(c) of the CrimPA, the charge is capable of reinstatement.
If there was a jurisdictional error by the Trial Judge, should the matter be sent back for determination in accordance with law or should the orders made be simply set aside?
The plaintiff submitted that the orders can only be set aside and that to remit the matter for re-hearing ‘would impugn the final nature of the acquittals that have occurred’.
The defendant submitted that if the trial Judge fell into jurisdictional error, the matter should be sent back for determination in accordance with law.
Decision
In my opinion, the plaintiff’s claim for relief should be dismissed for the following reasons:
(a)There was no error by the County Court Judge on the face of the record.
(b)The transcript of the hearing before the Magistrate and the certified extract of the Magistrates’ Court register, both of 18 February 2016, are admissible.
(c) As a matter of fact, the Magistrate did not dismiss charge 5 on the merits.
(d)The fact that the Magistrate ‘cleared the summons’ by ‘dismissing’ rather than ‘striking out’ charge 5 does not distinguish Quick[21] because, under s 256(2)(c) of the CrimPA, the County Court had the power to:
(i) reinstate charge 5; and, if necessary
(ii) amend the order of the Magistrate and reinstate charge 5.
(e)In any event, on an appeal under s 254 of the CrimPA, the County Court has jurisdiction to convict of a charge dismissed in accordance with s 51(1) of the Interpretation of Legislation Act 1984.
[21](2015) 49 VR 479.
There was no error by the County Court Judge on the face of the record
In the amended originating motion, the plaintiff seeks relief in the nature of certiorari on the basis that the County Court made an error of law on the face of the record.
The record comprises the documents that initiate the proceedings which ground the jurisdiction of the Court, the pleadings and the determination,[22] together with documents incorporated pursuant to s 10 of the Administrative Law Act 1978, which provides as follows:
Any statement by a tribunal or inferior court whether made orally or in writing, and whether or not made pursuant to a request or order under section 8, of its reasons for a decision shall be taken to form part of the decision and accordingly to be incorporated in the record.
[22]Craig v State of South Australia (1995) 184 CLR 163, 182 (Brennan, Deane, Toohey, Gaudron and McHugh JJ).
Pursuant to s 10 of the Administrative Law Act 1978, the transcript of the reasons for decision of the County Court Judge is part of the record, together with any material incorporated in the reasons if:
(a) it is specifically incorporated by reference in the reasons for decision; or
(b)reference to the material is necessary in order to understand the reasons for decision given by the lower court.[23]
[23]O’Connor v County Court (2014) 67 MVR 66, 74 [30] (Kaye J).
In my opinion, the record includes the whole of the Charge Sheet because of the following:
(a)As the nature of the rehearing by the County Court is a hearing de novo, the documents that initiate the proceedings which ground the jurisdiction of the County Court include the Charge Sheet that had been before the Magistrate at the hearing; and that the Judge is required to hear de novo.
(b)The Charge Sheet, and specifically charge 5, was necessarily incorporated into the reasons of the Judge, when he found charge 5 ‘made out’;[24] and convicted and sentenced him with respect to that charge.[25]
[24]Transcript of County Court (3 May 2016) 59.
[25]Transcript of County Court (3 May 2016) 63.
Accordingly, as the Charge Sheet, including charge 5, was part of the record, the Judge did not make an error on the face of the record and the claim for relief in the nature of certiorari must fail unless the Judge did not have jurisdiction to convict the plaintiff of charge 5.
The transcript of the hearing before the Magistrate and the certified extract of the Magistrates’ Court register, both of 18 February 2016, are admissible
In any event, as the argument developed, the plaintiff did contend that the Judge had acted without jurisdiction in convicting and sentencing the plaintiff in respect of charge 5.
As was argued in Quick,[26] the plaintiff contended that charge 5 was not the subject of the appeal. Accordingly, by force of s 254 of the CrimPA, the appeal was confined relevantly to charge 4 of which the plaintiff had been convicted; and in respect of which he had appealed.[27]
[26](2015) 49 VR 479.
[27](2015) 49 VR 479, 481 [10].
For the purposes of the plaintiff’s claim for relief in the nature of certiorari on the ground of jurisdictional error, the Court is entitled to take into account any relevant admissible material which is adduced before it.[28] To determine the issue of whether the dismissal of charge 5 in the Magistrates’ Court meant that the County Court Judge had no jurisdiction to convict the plaintiff of charge 5 on the rehearing under ss 254 and 256 of the CrimPA, both the extract of the Magistrates’ Court decision and the transcript of the relevant hearing before the Magistrate are relevant and admissible.
[28]Candolim Pty Ltd v Garrett [2005] VSC 270 [43] (Hargrave J); Craig v State of South Australia (1995) 184 CLR 163, 176.
As a matter of fact, the Magistrate did not dismiss charge 5 on the merits
Section 178 of the Evidence Act 2008 provides as follows:
Convictions, acquittals and other judicial proceedings
(1) This section applies to the following facts—
(a)the conviction or acquittal before or by an applicable court of a person charged with an offence;
(b)the sentencing of a person to any punishment or pecuniary penalty by an applicable court;
(c) an order by an applicable court;
(d)the pendency or existence at any time before an applicable court of a civil or criminal proceeding.
(2)Evidence of a fact to which this section applies may be given by a certificate signed by a judge, a magistrate or registrar or other proper officer of the applicable court—
(a)showing the fact, or purporting to contain particulars, of the record, indictment, conviction, acquittal, sentence, order or proceeding in question; and
(b)stating the time and place of the conviction, acquittal, sentence, order or proceeding; and
(c) stating the title of the applicable court.
(3)A certificate given under this section showing a conviction, acquittal, sentence or order is also evidence of the particular offence or matter in respect of which the conviction, acquittal, sentence or order was had, passed or made, if stated in the certificate.
(4)A certificate given under this section showing the pendency or existence of a proceeding is also evidence of the particular nature and occasion, or ground and cause, of the proceeding, if stated in the certificate.
(5)A certificate given under this section purporting to contain particulars of a record, indictment, conviction, acquittal, sentence, order or proceeding is also evidence of the matters stated in the certificate.
(6) In this section—
acquittal includes the dismissal of the charge in question by an applicable court; applicable court means an Australian court or a foreign court.
…
The extract of the Magistrate’s decision was that charge 5 was ‘Dismissed – MERITS OF THE CASE’. Such plain words constitute evidence that the Magistrate dismissed the charge on its merits; and that the plaintiff was acquitted of charge 5.
However, under s 178(5) of the Evidence Act 2008, although the certificate is evidence of an acquittal; it is not conclusive evidence.
It is well established that the order of the court is as it is ‘pronounced by the lips of the judge’.[29]
[29]Re Risca Coal and Iron Co; Ex parte Hookey (1862) 4 De GF & J 456; 45 ER 1261, 1262 (Lord Westbury LC); Dalton v South Australia (2010) 106 SASR 279, 289–90 [39].
The transcript of the proceeding before the Magistrate establishes that the Magistrate found charge 5 was proven; but dismissed it because it was an alternative to charge 4. In particular, I refer to the following part of the transcript:
HIS HONOUR: I am satisfied that by his repeated requests to ‘flash her tits or anything on her body’ with the added inducement of payment of money constituted an attempt by him to procure an indecent act. Notwithstanding her repeated refusals to comply, he continued to persist and made repeated requests, which was an attempt, albeit unsuccessful, to procure her for an indecent act. Accordingly, I find charge 4 proven and will dismiss the alternative, being charge 5.
LEADING SENIOR CONSTABLE: If I might request, sir, does Your Honour find charge 5 proved?
HIS HONOUR: Yes.
LEADING SENIOR CONSTABLE: I would seek to proceed on charge 5 as opposed to charge 4. Given that charge 4 is an attempt, a 321 attempt, charge 5 is a substantive offence in its own right.
MR PILLAI: I think Your Honour will find, and I’ve just heard that Your Honour has found that charge 5 is proven ---
HIS HONOUR: Yes.
MR PILLAI: --- but that’s a s 58(1) proved ---
HIS HONOUR: Yes.
MR PILLAI: --- on the basis that he solicited. Is that my understanding?
HIS HONOUR: Yes.
MR PILLAI: Yes, I would have thought 4 would have been the more appropriate one because it’s an attempt.
HIS HONOUR: Well, they were initially put in the alternative.
MR PILLAI: Yes, Your Honour is then saying that the act was committed.
HIS HONOUR: Wasn’t committed.
MR PILLAI: Then ---
HIS HONOUR: It’s got to be charge 4, not 5.[30]
[30]Transcript of Magistrates’ Court (18 February 2016) 13–14 (emphasis added).
In my opinion, the transcript demonstrates that, by dismissing charge 5, the Magistrate was ‘“clearing” the summons’.[31]
[31]Quick (2015) 49 VR 479, 484 [24].
It was necessary for the Magistrate to ‘clear’ charge 5 because s 51(1) of the Interpretation of Legislation Act 1984 and the common law[32] prohibit punishment more than once for the same act or omission. Section 51(1) provides as follows:
Where an act or omission constitutes an offence under two or more laws, the offender shall, unless the contrary intention expressly appears, be liable to be prosecuted under either or any or all of those laws but shall not be liable to be punished more than once for the same act or omission.
[32]R v Sessions [1998] 2 VR 304, 312–3 (Hayne JA).
A conviction is part of the punishment[33] and, accordingly, the Magistrate was correct in not recording a conviction on charge 5, after he had recorded a conviction of the plaintiff on charge 4. As was said by Priest JA in Berichon v The Queen:
If an act or omission constitutes an offence under two or more laws then a person may be prosecuted and punished under those two or more laws, so long as the offender is not being punished twice for the same act or omission.
Determination of whether there is a single act or omission, or more than one act or omission, which constitutes a breach of more than one law, may not always be an easy exercise. Often it will involve fine analysis. But it is a task that needs to be approached as a matter of common sense, not semantics, and should not be attended by ‘excessive subtleties and refinements’.[34]
[33]R v Sessions [1998] 2 VR 304, 313 (Hayne JA with whom Batt JA agreed); Neill v County Court of Victoria [2003] VSC 328 [72].
[34][2013] VSCA 319 [50] (Redlich and Priest JJA and Robson AJA). See, eg, the discussion in Lecornu v The Queen (2012) 36 VR 382 [12]–[22] (Maxwell P with whom Hollingworth AJA and Cavanough AJA agreed).
However, in the present case there was no issue that both charge 4 and charge 5 arose out of the Second Request; and that the Magistrate was right not to proceed and convict on both charges
The fact that the Magistrate ‘cleared the summons’ by ‘dismissing’ rather than ‘striking out’ charge 5 does not distinguish Quick because, under s 256(2)(c) of the CrimPA, the County Court had the power to reinstate charge 5
As referred to above, the Court of Appeal in Quick[35] found that ‘in the hearing of an ‘Appeal by Offender’, per div 1 of pt 6.1 of the CrimPA, s 256(2)(c) of that Act [gave] the County Court the power to reinstate charges which had been struck out by the Magistrates’ Court in the course of the original proceeding’.[36] As noted above, the Court reasoned:
(a)the Magistrates’ Court has power to reinstate charges that have been struck out;
(b)the County Court under s 254 of the CrimPA may exercise any power that the Magistrates’ Court could have exercised; and therefore
(c)on an appeal from the Magistrates’ Court, the County Court can exercise the same power of reinstatement as the Magistrates’ Court had.[37]
[35](2015) 49 VR 479.
[36]Ibid 480 [4], 485 [28].
[37]Ibid 483 [16]–[18].
Counsel for the plaintiff sought to distinguish Quick[38] on the basis that the relevant charge in that case was ‘struck out’ and not ‘dismissed’. He submitted that R v McGowan[39] stands for the proposition that a dismissal or conviction was a bar to other courts hearing the same offence again, but an order striking out proceedings:
(a) does not put an end to proceedings;
(b) is not a curial determination of the charges; and
(c)ultimately amounts to no more than a direction to remove the case from the list.
[38]Ibid.
[39][1984] VR 1000, 1002 (Kaye J).
However, as counsel for the defendant submitted, in R v McGowan his Honour was distinguishing between:
(a)‘the power to order re-entry of a cause which “by any misadventure has not been heard either by the plaintiff not appearing or from any misfortune, or for any other good reason” as “almost incidental to the jurisdiction of any court, unless it has been taken away by statute”’; and
(b)a dismissal by a court ‘having determined the matter on its merits, [and] … ma[king] an order convicting the defendant or dismissing the information’.[40]
[40]Ibid 1003, citing Jennings v The London General Omnibus Co[No 2] (1874) 30 LT 640, 642 (Bramwell B) and Gregory v Murphy [1906] VLR 71 (emphasis added).
As I have already found, the Magistrate, having found charges 4 and 5 proven, intended only to ‘clear the summons’ by ordering that charge 5 be dismissed. The transcript establishes that the Magistrate found that charge 5 had been proved and had no intention to acquit the plaintiff.
I do not consider that the Magistrate’s dismissal of charge 5 was a final order, which was not capable of being reinstated for the following reasons:
(a)The distinction between final and interlocutory orders is not always easy to draw.[41]
(b)The question of whether an order is interlocutory or final is determined by whether the order finally determines the rights of the parties in a principal proceeding between the parties.[42]
(c)A striking out of a charge, which has not been determined on its merits, is interlocutory, despite the fact that the order ‘brought the proceedings before the Magistrate to an end from a practical point of view … [and] it is theoretically open for an application to be made to reinstate the proceeding, futile though such an application is likely to be in the present circumstances’.[43] The test requires regard to be had to the ‘legal rather than the practical effect of the judgment’.[44]
(d)Although the test of distinguishing between final and interlocutory was developed in the context of civil proceedings, ‘it is applicable to criminal proceedings or to orders that relate to criminal proceedings’.[45]
(e)Although dismissal of a charge might more readily lead to an inference that the Court is finally disposing of rights, such a conclusion is not always appropriate.[46] There are many instances where a dismissal of a proceeding is not a final order.[47] In the United States, ‘dismissal without prejudice’ is an order commonly employed when the court has not finally determined the merits and ‘does not bar the plaintiff from refiling the lawsuit’.[48] In Australia, if it is intended to dismiss a proceeding without making a final order, the order commonly made is to dismiss the proceeding without adjudication on the merits.[49]
[41]Licul v Corney (1976) 180 CLR 213, 225 (Gibbs CJ).
[42]Re Luck (2003) 203 ALR 1, 2 [4] (McHugh ACJ, Gummow and Heydon JJ); Brereton v Sinclair (2000) 2 VR 424, 431 [21] (Chernov JA).
[43]DPP v Sabransky [2002] VSC 143 [37] (Kellam J). Also see DPP v Hogg [2006] VSC 257.
[44]Carr v Finance Corporation of Australia Ltd [No 1] (1981) 147 CLR 246, 248 (Gibbs CJ)
[45]Brereton v Sinclair (2000) 2 VR 424, 429 [15] (Chernov JA).
[46]See discussion of whether a dismissal constitutes a final order in Brereton v Sinclair (2000) 2 VR 424, 430–1 [18]–[19] (Chernov JA); Wills v Australian Broadcasting Centre (2009) 253 ALR 228 (North, Emmett and Rares JJ), particularly 232–3 [23]–[30] (Rares J with whom Emmett J agreed); Jefferson Ford Pty Ltd v Ford Motor Company of Australia Ltd [2008] FCAFC 60 (Finkelstein, Rares and Gordon JJ), particularly 232 [42]–[63] (Rares J).
[47]See references to dismissals constituting interlocutory orders in ‘Instances of interlocutory orders’ in Williams, Civil Procedure Victoria [I 64.01.455].
[48]Bryan A Garner, Black’s Law Dictionary (Thomson Reuters, 10th ed, 2014) 569.
[49]See for example Shaw v Yarranova Pty Ltd [2014] VSCA 48 [30]–[31] (Santamaria and Beach JJA and McMillan AJA).
Accordingly, whether a dismissal of a proceeding or a charge is an interlocutory or final order requires reference to the substance of the decision rather than the form of the order. If Quick[50] could be distinguished on the basis of the Magistrate used the word ‘dismissed’ rather than ‘struck out’, as counsel for the defendant submitted, it would be a victory for form over substance.
[50](2015) 49 VR 479.
As I have found that the order of the Magistrate was intended to ‘clear the summons’ and was not intended to be a final order, I consider that the dismissal of charge 5 was an interlocutory order; and the Magistrates’ Court had power to reinstate it.
The fact that the Magistrate ‘cleared the summons’ by ‘dismissing’ rather than striking out’ charge 5 does not distinguish Quick because, under s 256(2)(c) of the CrimPA, the County Court had the power to amend the order of the Magistrate and reinstate charge 5
If, contrary to the above, by using the expression ‘dismissed’, the Magistrate gave effect to a final dismissal or acquittal of the plaintiff, it was entirely unintended; and it was within the power of the Magistrates’ Court to correct the order both under its inherent power and under s 412 of the CrimPA. Therefore, the County Court also had jurisdiction to correct the order and reinstate the charge by the conferral of powers of the Magistrates Court on the County Court under s 256(2)(c) of the CrimPA.
Inherent Power
In Director of Public Prosecutions v Moore,[51] the facts were as follows:
[51](2003) 6 VR 430 (Batt, Chernov and Eames JJA).
(a) The defendant was charged with:
(i)driving with excessive blood alcohol concentration contrary to s 49(1)(b) of the Road Safety Act 1986 (‘charge 1’); and
(ii)having an excessive blood alcohol concentration within 3 hours of driving contrary to s 49(1)(f) of the Road Safety Act 1986 (‘charge 2’).
(b) The magistrate declared charge 2 a nullity and ordered that it be struck out.
(c) The case proceeded on charge 1 and the magistrate dismissed charge 1.
(d)The DPP appealed on questions of law to the Supreme Court, where relevantly, it was held that the appeal against the striking out of charge 2 be upheld, the order striking out that charge be set aside and the matter be remitted to the magistrate for determination according to law.
(e)The DPP appealed to the Court of Appeal against orders relating to charge 1; but relevantly, the defendant cross-appealed against the orders relating to charge 2. The ground of the cross-appeal was that the judge erred in not dismissing as incompetent the appeal against the magistrate’s order striking out the charge under s 49(1)(f), because, as that order was not a final order, it could not be appealed to the Supreme Court.
The Court of Appeal allowed the cross-appeal on the basis that a right of appeal to the Supreme Court is available only in the case of final orders of the Magistrates’ Court. As a result, the primary judge had no jurisdiction with respect to the order striking out the charge under s 49(1)(f) because that order was not a final order.
Batt JA[52] noted the general principle that a charge struck out of the court list is an interlocutory order; but then considered the question of whether that principle would apply to an application for reinstatement ‘when the magistrate has dismissed the charge as nullity’.[53] His Honour stated:
A question arises here, however, whether, when the magistrate has dismissed the charge as a nullity, the order should be treated as impliedly forbidding an application for reinstatement. Certainly, one may surmise, the magistrate here would have been surprised if an application for reinstatement had been made to her. But I do not think that the order can be read as impliedly containing such a prohibition. After all, the magistrate may be said to have supplied her own lexicon, for she dismissed the other charge after a hearing on the merits. The merits were not investigated in the case of charge 2. Although no case considering reinstatement of a charge or information struck out as a nullity was cited or has otherwise come to my attention, I have in the end come to the conclusion … that a court of summary jurisdiction has power to set aside an order striking out a complaint or information which has been made in error, is applicable to the order striking out the charge under s 49(1)(f) here.[54]
[52]With whom Chernov and Eames JJA agreed.
[53]Ibid 437 [20], 446 [37] (Chernov JA), 455 [63] (Eames JA) (emphasis added).
[54]Ibid 437 [20] (emphasis in original).
In my opinion, Batt JA’s analysis of the question ‘when the magistrate has dismissed the charge as a nullity’ was intended to underline that, despite the wording of the order, the magistrate did not simply strike the charge out of the list; but effectively dismissed the charge as a nullity. However, he nonetheless concluded that ‘the order should [not] be treated as impliedly forbidding an application for reinstatement’;[55] because the charge was not dealt with on the merits. As was explained by Williams J in Director of Public Prosecutions v Hogg:
The inherent power [referred to by Batt JA in DPP v Moore] exists in relation to an order erroneously made, before the merits are entered into, regardless of the legal justification for the making of the order, absent such error.[56]
[55]Ibid.
[56][2006] VSC 257 [42].
For reasons already stated, the dismissal by the Magistrate in this case was not on the merits. On the contrary, the dismissal followed the Magistrate specifically finding that the charge was proved. Accordingly, I consider that, if it was an error to dismiss rather than strike-out charge 5, the Magistrates’ Court had inherent ‘power to set aside an order striking out a complaint or information which has been made in error’.[57]
[57]DPP v Moore (2003) 6 VR 430, 437 [20].
Under s 256(2)(c) of the CrimPA, the County Court may exercise the same power which the Magistrates’ Court could have exercised.[58]
[58]Quick (2015) 49 VR 479, 484 [23]–[24].
Power under s 412 of the CrimPA
Further, s 412 of the CrimPA provides as follows:
For the purpose of correcting any defect or error in substance or in form, a court may amend any summons, warrant, plea, judgment or order.
Section 256(2)(c) of the CrimPA is ‘intended to place the County Court in the same position as the Magistrates’ Court and with complete control over the criminal proceeding before it’.[59] Accordingly, just as the Court of Appeal in Quick[60] held that the County Court would have had the power to reinstate the charge struck out in that case, the County Court, having the same powers as the Magistrates Court, could have corrected the dismissal order under s 412 of the CrimPA; and reinstated the dismissed charge 5 pursuant to s 256(2)(c) of the CrimPA.
The County Court has jurisdiction to convict of a charge dismissed in accordance with s 51(1) of the Interpretation of Legislation Act 1984
[59]Quick (2015) 49 VR 479, 483 [18].
[60]Ibid.
The question is whether s 256(2)(b) of the CrimPA, which provides that ‘[o]n the hearing of an appeal under section 254, the County Court … may impose any sentence which the County Court considers appropriate and which the Magistrates’ Court imposed or could have imposed’, entitles the County Court to convict of a charge dismissed in accordance with s 51(1) of the Interpretation of Legislation Act 1984.
In determining this question, it is necessary to apply the appropriate principles of statutory construction.
Principles of statutory construction
The Court of Appeal recently considered the principles of statutory construction in Colonial Range Pty Ltd v CES-Queen (Vic) Pty Ltd.[61] I summarise the approach adopted by the Court of Appeal as below.
[61][2016] VSCA 328 [47]–[55] (Warren CJ, Whelan JA and Riordan AJA).
The primary object of statutory construction is to construe the relevant provision so that its legal meaning is consistent with:
(a) the language of the relevant provision, being the text; and
(b) the legislative purpose of the statute.[62]
The legal meaning is ‘the meaning that the legislature is taken to have intended the provision to have’.[63] It may or may not be the same as the literal meaning.[64]
[62]Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, 381–2 [69] (McHugh, Gummow, Kirby and Hayne JJ).
[63]Ibid 384 [78].
[64]Ibid.
Accordingly, in statutory construction, the focus is on the text and the legislative purpose as follows:
(a)The primacy of the text has been emphasised by the High Court.[65] It has been said that the process of statutory interpretation starts and ends with the text.[66]
(b)To ascertain the legislative purpose, the Court first considers the text of the relevant provision in its context. The context means:
(i) the whole of the Act or other instrument;
(ii) the existing state of the law; and
(iii) the legislative history.
It is only after exhausting this approach, that one can have reference to parliamentary debates or other extrinsic material;[67] and such material cannot displace the clear meaning of the text.[68]
[65]See examples cited in Commissioner of State Revenue v EHL Burgess Properties Pty Ltd [2015] VSCA 269 [56]–[62] and the discussion in Di Paolo v Salta Constructions Pty Ltd [2015] VSCA 230 [32]–[48] (Osborn and Kyrou JJA) and Lowe v The Queen (2015) 48 VR 351, 357–9 [12]–[18] (Warren CJ).
[66]Commissioner of Taxation v Consolidated Media Holdings Ltd (2012) 250 CLR 503 519 [39] (French CJ, Hayne, Crennan, Bell and Gageler JJ). The expression was adopted by the High Court in Thiess v Collector of Customs (2014) 250 CLR 664, 671 [22] (French CJ, Hayne, Kiefel, Gageler and Keane JJ) and also by the Court of Appeal in DPP v Walters (2015) 49 VR 356, 358 [2] (Maxwell P and Redlich, Tate and Priest JJA).
[67]Saeed v Minister for Immigration & Citizenship (2010) 241 CLR 252, 265 [33] (French CJ, Gummow, Hayne, Crennan and Kiefel JJ); cited in Di Paolo v Salta Constructions Pty Ltd [2015] VSCA 230 [36] (Osborn and Kyrou JJA).
[68]Northern Territory v Collins (2008) 235 CLR 619, 642 [99] (Crennan J).
If the literal meaning of the text is consistent with the identified legislative purpose, the literal meaning will be accepted as the legal meaning.
However, if the literal meaning conflicts with the identified legislative purpose, a departure from the literal meaning may be justified. The resultant tension was described by Francis Bennion in ‘Statutory Interpretation’ as follows:
Consideration of the enactment in its context may raise factors that pull in different ways. For example the desirability of applying the clear literal meaning may conflict with the fact that this does not remedy the mischief that Parliament intended to deal with.[69]
[69]Francis Bennion, Statutory Interpretation: A Code (Butterworths, 3rd ed, 1997) 343–4; referred to with approval in Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, 384 [78] (McHugh, Gummow, Kirby and Hayne JJ).
Examples of conflicts between the literal meaning and the identified legislative purpose, which have justified departure from the literal meaning, have included the following:
(a) The literal meaning would conflict with other provisions of the statute.
(b) The literal meaning is inconsistent with the purpose of the statute.
(c) The literal meaning is incapable of practical application.
(d)Adoption of the literal meaning would lead to a result, which is absurd, unreasonable or anomalous.[70]
[70]Colonial Range Pty Ltd v CES-Queen (Vic) Pty Ltd [2016] VSCA 328 [53] (Warren CJ, Whelan JA and Riordan AJA) (citations omitted).
If it is determined that such a conflict exists, the approach to reconciliation of the conflict is as follows:
(a) First, if an alternative construction is to be adopted as the legal meaning, it is necessary that the alternative construction is ‘reasonably open’[71] and ‘consistent with the language in fact used by the legislature’.[72] This is necessary because ‘the task remains the construction of the words the legislature has enacted’.[73] The purpose of legislation must be derived from what the legislation says, and not from any assumption about the desired or desirable reach or operation of the relevant provisions’.[74]
(b)Section 35(a) Interpretation of Legislation Act 1984 provides that a construction that promotes the purpose of the Act is to be preferred to a construction that does not.
(c)If the inconsistency between the literal meaning and the legislative purpose is the result of ‘simple, grammatical, drafting errors which if uncorrected would defeat the object of the provision’, an alternative construction, which is consistent with the legislative purpose, may be more ‘readily’ adopted.[75]
(d)After the identification of an alternative construction, the legal meaning will be determined by balancing:
(i)the strength of the literal meaning as against the alternative construction; and
(ii)the extent to which these meanings are consistent with the promotion of the legislative purpose.
[71]CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 348, 408 (Brennan CJ, Dawson, Toohey and Gummow JJ).
[72]Taylor v Owners—Strata Plan No 11564 (2014) 253 CLR 531, 549 [39] (French CJ, Crennan and Bell JJ). Although the Court was here referring to a modified meaning as one which added or omitted words, a fortiori, it must also be a requirement whenever a court is to infer the legal meaning is other than a literal or grammatical meaning.
[73]Ibid.
[74]Certain Lloyd’s Underwriters v Cross (2012) 248 CLR 378, 390 [26] (French CJ and Hayne J).
[75]Taylor v Owners—Strata Plan No 11564 (2014) 253 CLR 531, 548 [38] (French CJ, Crennan and Bell JJ). The unique nature of the power to correct drafting errors was recognised in Inco Europe Ltd v First Choice Distribution (a firm) [2000] 1 WLR 586. At 592, Lord Nicholls said ‘It has long been established that the role of the courts in construing legislation is not confined to resolving ambiguities in statutory language. The court must be able to correct obvious drafting errors. In suitable cases, in discharging its interpretative function the court will add words, or omit words or substitute words. … This power is confined to plain cases of drafting mistakes.’
This balancing exercise has been explained by High Court as follows:
(a)‘If the choice is between two strongly competing interpretations, as we have said, the advantage may lie with that which produces the fairer and more convenient operation so long as it conforms to the legislative intention. If, however, one interpretation has a powerful advantage in ordinary meaning and grammatical sense, it will only be displaced if its operation is perceived to be unintended.’[76]
(b)‘[I]nconvenience or improbability of result may assist the court in preferring to the literal meaning an alternative construction which … is reasonably open and more closely conforms to the legislative intent’.[77]
[76]Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297, 321 (Mason and Wilson JJ).
[77]CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 348, 408 (Brennan CJ, Dawson, Toohey and Gummow JJ).
With respect to interpreting a provision as if it contained additional words, guidance has been provided by the plurality of the High Court in Taylor v Owners—Strata Plan No 11564.[78] Their Honours stated that ‘the task remains the construction of the words the legislature has enacted … any modified meaning must be consistent with the language in fact used by the legislature.’[79] The plurality said that whether an interpretation of a provision, as if it contained additional words, is justified involves a judgment of matters of degree; and explained:
That judgment is readily answered in favour of addition or omission in the case of simple, grammatical, drafting errors which if uncorrected would defeat the object of the provision. It is answered against a construction that fills ’gaps disclosed in legislation’ or makes an insertion which is ‘too big, or too much at variance with the language in fact used by the legislature’.[80]
[78](2014) 253 CLR 531 (French CJ, Crennan and Bell JJ).
[79]Ibid 549 [39].
[80]Ibid 548 [38] (citations omitted).
Application of the principles
Section 254 of the CrimPA gives a person convicted of an offence in the Magistrates’ Court a right of appeal. As noted above, the appeal is conducted as a hearing de novo. The appellant is not bound by the plea entered before the Magistrate’s Court.[81] The rehearing must of necessity relate to all of the acts which it is alleged constitute the offence, which is the subject of the appeal. The absolute nature of the rehearing has been emphasised by judicial statements such as the following:
(a)‘[O]n a rehearing such a judgment may be given as ought to be given if the case came on before the Court of first instance’.[82]
(b)‘[T]he Court determines the appeal without regard to the reasons of the Magistrate. The parties may call other evidence, they are not bound to call evidence which was called on the first hearing, and the court on appeal substitutes its decision based on the facts proven and law as at the date of the appeal’.[83]
(c)‘[E]verything which happened in the Magistrates’ Court is to be disregarded on the hearing of the County Court appeal’.[84]
(d)‘Once an appeal has commenced, the County Court must set aside the orders of the Magistrates’ Court.It is as if the order of the Magistrates’ Court has disappeared’.[85]
(e)‘I think that the correct view of the matter is that when the hearing of the appeal commences, and it must be borne in mind that it is a hearing ‘de novo’, the order of the Magistrates’ Court should be either formally set aside or at the least be deemed to be set aside. I say that for the reason that as the hearing is a hearing de novo and regardless of the outcome the order the Magistrates’ Court must be set aside there should no longer be any order on foot in respect of the matter at the time the hearing of the appeal commences before the County Court’.[86]
[81]CrimPA s 256(1).
[82]Quilter v Mapleson (1882) 9 QBD 672, 676 (Jessell MR).
[83]Mrs X v Secretary to the Department of Human Services [2003] VSC 140 [60] (Gillard J).
[84]Candolim Pty Ltd v Garrett [2005] VSC 270 [30] (Hargrave J).
[85]DPP (Vic) v Shoan (2007) 176 A Crim R 457, 462 [20] (Buchanan JA with whom Nettle JA and Curtain AJA agreed).
[86]Helfenbaum v Sattler (1999) 3 VR 583 (Beach J).
Pursuant to s 256(2)(b) of the CrimPA, on the hearing of the appeal, the County Court may impose any sentence (which is defined to include the recording of a conviction[87]) which the County Court considers appropriate and which the Magistrates’ Court imposed or could have imposed.
[87]CrimPA s 3.
The literal meaning of the section empowers the County Court Judge, on hearing the appeal de novo, to convict the appellant of any charge (if it is considered appropriate), of which the Magistrate could have convicted the appellant.
In this case, the Magistrate had before him charge 5 and could have recorded a conviction for that offence. Accordingly, on a plain reading of s 256(2)(b) of the CrimPA, the County Court could convict on charge 5. Generally, this construction of the section would empower a County Court Judge to reconsider alternative offences after a Charge Sheet has been ‘cleared’ because, pursuant to s 51(1) of the Interpretation of Legislation Act 1984, the offender could not be ‘punished more than once for the same act or omission’.
This construction is consistent with the legislative purpose identified in Quick[88] of placing ‘the County Court in the same position as the Magistrates’ Court and with complete control over the criminal proceedings before it’.[89]
[88](2015) 49 VR 479.
[89]Ibid 483 [18].
The alternative construction, which would limit the County Court to only convicting the appellant of the charge the subject of the appeal, would require the following words of limitation in italics to be read into the the section such that s 256(2)(b) of the CrimPA would read:
the County Court may impose any sentence [including the recording of a conviction] which the County Court considers appropriate and which the Magistrates’ Court imposed or could have imposed, providing it is the subject of the appeal.
As identified in Quick,[90] this interpretation would produce anomalous consequences:
For a long time, it has been a commonplace for a series of charges to be laid in the one summons, a number of which constitute alternative charges to the principal charge. Where a defendant is convicted of the principal charge, it is necessary to make appropriate orders disposing of the lesser alternatives. That is achieved by making an order striking out those alternative charges, in that sense ‘clearing’ the summons.
If, on appeal, the County Court did not have the power to hear the charges that had been struck out in the Magistrates’ Court, that court would be in the anomalous position of not having available to it the alternative charges that were available on the hearing before the Magistrates’ Court. It is clear that s 256(2)(c) of the [CrimPA] was intended to enable the County Court on appeal to do full justice to both sides. The narrow construction of that provision contended for by the respondents would be directly contrary to that legislative intention.[91]
[90](2015) 49 VR 479.
[91]Ibid 484 [24]–[25].
By contrast, I do not consider that the literal construction would produce anomalous results by subjecting the appellant to convictions for charges with respect to acts that were not the subject of the appeal. Even apart from autrefois acquit, the conviction and/or sentence, which is the subject of the appeal, will dictate the acts that are the subject of evidence on the appeal de novo. Accordingly, the power of the Judge to convict on charges that have been struck out or dismissed, will in normal circumstances be limited to a charge that was ‘cleared’ because it was constituted by precisely the same act or omission which constituted the offence of which the appellant was convicted and has appealed.
In the circumstances, I consider that the literal meaning is consistent with the legislative purpose. Accordingly, the County Court Judge did have jurisdiction to record a conviction with respect to charge 5, which, in accordance with s 51 of the Interpretation of Legislation Act 1984, had been dismissed by the Magistrate as the alternative to Charge 4.
Order
I propose to dismiss the proceedings.
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