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Kiley v McMahon

Kiley v McMahon

Case [2024] VSC 228 10 May 2024

Appeal

Statutory Interpretation

Judicial Review

Criminal Law

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IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST

S ECI 2022 05166

BETWEEN:

GAYLE KILEY	Appellant
-and-
SENIOR CONSTABLE TIMOTHY MCMAHON (VICTORIA POLICE) UNI-HAMILTON	Respondent

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JUDGE:	HARRIS J
WHERE HELD:	Melbourne
DATE OF HEARING:	22 February 2024
DATE OF JUDGMENT:	10 May 2024
CASE MAY BE CITED AS:	Kiley v McMahon
MEDIUM NEUTRAL CITATION:	[2024] VSC 228

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CRIMINAL LAW – Appeal from Magistrates’ Court on a question of law pursuant to Criminal Procedure Act 2009, s 272 – Whether Magistrate erred in taking into account an irrelevant consideration – Whether Magistrate erred in failing to take into account a relevant consideration – Magistrate’s application of relevant case law – challenge to validity of Public Health and Wellbeing Act 2000, s 200(1)(b) and (d) – Palmer v Western Australia (2021) 272 CLR 505 ; Cotterill v Romanes [2023] VSCA 7; Loielo v Giles (2020) 63 VR 1.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Self-represented
For the Respondent	Mr J O’Connor	Ms A Hogan, Solicitor for Public Prosecutions

HER HONOUR:

On 16 March 2020, a State of Emergency in relation to the COVID-19 pandemic was declared in Victoria.[1] The State of Emergency was extended on 16 August 2020.[2] On 27 August 2020, the Deputy Public Health Commander issued directions pursuant to the Public Health and Wellbeing Act 2008 (PHW Act), including the Stay at Home Directions (Non-Melbourne) (No 4).[3] The directions prohibited a person from leaving their place of residence without a specified reason and prohibited residents outside of Metropolitan Melbourne from entering Metropolitan Melbourne without a specified reason.
[1]See introduction to the Extension of the Declaration of a State of Emergency dated 16 August 2020, and published in Victoria, Victoria Government Gazette, No S 417, 17 August 2020, 1; Affidavit of Sarah Louise Goegan affirmed 31 August 2023 (Goegan Affidavit) Exhibit SLG-6, 87.
[2]Extension of the Declaration of a State of Emergency dated 16 August 2020; Goegan Affidavit Exhibit SLG-6, 87.
[3]Stay at Home Directions (Non-Melbourne) (No 4), issued by Dr Finn Romanes, the Deputy Public Health Commander as authorised to exercise emergency powers by the Chief Health Officer under section 199(2)(a) of the PHW Act. That direction applied to persons ordinarily resident persons in the Relevant Area, being the area of Victoria outside the Restricted Area, which was defined by Area Directions (No 7) to be the municipal districts, suburbs and localities in Greater Melbourne. The Direction required persons in the Relevant Area to limit their interactions by restricting the circumstances in which they may leave the premises where they ordinarily reside and the Relevant Area: see clauses 1, 5(1), 13. The Direction also required a person who ordinarily resides in the Relevant Area not to enter the Restricted Area other than for specified reasons (clause 5(1B). These Directions were before the Magistrate and in evidence in this appeal: Goegan Affidavit, Exhibit SLG-7 and SLG-8.

On…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Kiley v McMahon

Details

AGLC: Kiley v McMahon [2024] VSC 228
Case: [2024] VSC 228
Decision Date: 10 May 2024

CaseChat Overview and Summary

The matter of Kiley v McMahon was an appeal against a conviction and sentence in the Magistrates’ Court, pursuant to the provisions of the Criminal Procedure Act 2009. The appellant, Kiley, contested the decision on the grounds of alleged errors made by the Magistrate during the sentencing process. The central issue was whether the Magistrate had erred in considering irrelevant factors and neglecting to take into account relevant ones. The appellant also questioned the applicability of certain sections of the Public Health and Wellbeing Act 2000 and the Magistrate's reliance on specific case law. The case law cited included Palmer v Western Australia, Cotterill v Romanes, and Loielo v Giles.

The court examined whether the Magistrate had indeed erred in the considerations taken and not taken. The court meticulously reviewed the arguments presented by the appellant regarding the Magistrate’s handling of the case. This involved assessing the relevance of the factors considered and the omission of pertinent elements. The court also analysed the application of the relevant sections of the Public Health and Wellbeing Act 2000 and the correctness of the Magistrate's interpretation and application of the cited case law. The court found that the Magistrate had properly exercised discretion and correctly applied the law, thus upholding the original decision.

In conclusion, the appeal was dismissed. The court held that the Magistrate had not erred in the considerations made and that the sentence was appropriately arrived at based on the evidence and applicable law. The court reaffirmed the validity of the Public Health and Wellbeing Act 2000, s 200(1)(b) and (d), and supported the Magistrate's reliance on the cited case law. The original conviction and sentence were upheld, and no further orders were made.

Orders