Kinnersly v Johnson
[2018] VSC 752
•5 December 2018 First Revision: 6 December 2018
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S CI 2017 02146
| SIMON KINNERSLY | Appellant |
| v | |
| TRAVIS PAUL JOHNSON | Respondent |
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JUDGE: | Cavanough J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 8 February 2018 |
DATE OF JUDGMENT: | 5 December 2018 First Revision: 6 December 2018 |
CASE MAY BE CITED AS: | Kinnersly v Johnson |
MEDIUM NEUTRAL CITATION: | [2018] VSC 752 |
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ADMINISTRATIVE LAW – Appeal on a question of law from the Magistrates’ Court – Appeal by person convicted of speeding offence – Where Magistrate, pursuant to ss 80 and 84 of the Criminal Procedure Act 2009, determined case on basis of preliminary brief after person failed to appear – Whether, in circumstances, charge must be proved beyond reasonable doubt on the basis of evidence that is, except to the extent that the rule against hearsay is inapplicable, admissible – Appeal dismissed – Criminal Procedure Act 2009 s 1, 3, 24, 25, 27, 35, 36, 37, 38, 39, 40, 41, 43, 44, 47, 53, 55, 79, 80, 81, 82, 83, 84, 85, 86, 87, 88, 89, 94, 272, 328, 329, 330 – Road Safety Act ss 79, 83 – Evidence Act s 8 – Road Safety (General) Regulations 2009 regs 41, 42, 43, 46 – Road Safety Road Rules 2009 r 20.
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APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr S P Hardy | Law Offices of Barry Fried |
| For the Respondent | Ms E H Ruddle | Office of Public Prosecutions |
HIS HONOUR:
Introduction and overview
This is an appeal from the Magistrates’ Court, on a question of law, in relation to a conviction for a speeding offence. The main issue is one of statutory interpretation. It may be summarised as follows:
Where —
(a) a person is served, under the Criminal Procedure Act 2009 (‘CPA’), with a summons to appear in the Magistrates’ Court to answer to a charge for a summary offence; and
(b) the informant serves on the person a ‘preliminary brief’ that includes, in accordance with s 37(2) of the CPA, a duly attested statement made by the informant of the alleged facts on which the charge is based, and that also meets the other requirements of ss 37 and 38 of the CPA; and
(c) the accused does not appear in answer to the summons; and
(d) on that basis, the Magistrates’ Court proceeds to hear and determine the charge in the absence of the accused under s 25(1) or s 80 of the CPA, whereby s 84(1)(a) of the CPA is satisfied; and
(e) the preliminary brief was served on the accused at least 14 days before the date of the hearing, whereby s 84(1)(b) of the CPA is satisfied; and
(f) the Magistrates’ Court considers that the matters set out in the preliminary brief disclose the offence charged, whereby s 84(1)(c)) of the CPA is satisfied,
is it open to the Magistrates’ Court, by virtue of s 84 and the other relevant provisions of the CPA, to find the accused guilty on the basis of the informant’s statement of the alleged facts, or must the charge still be established by evidence that, except to the extent that s 84 makes the rule against hearsay inapplicable, would be strictly admissible, and sufficient, in an ordinary hearing?
Notwithstanding certain prior decisions of this Court to the contrary, in my view the relevant provisions of the CPA compel the conclusion that, where the circumstances are as set out above, the Magistrates’ Court is entitled to find the accused guilty on the basis of the informant’s statement of the alleged facts. It is not necessary, in such circumstances, that the charge be established by evidence that (apart from the effect of s 84 in relation to the rule against hearsay) would be strictly admissible and sufficient in an ordinary hearing. I regard the relevant prior decisions of this Court as being plainly wrong in the present respect.
The appeal is brought under s 272 of the CPA. The appellant, Mr Kinnersly, did not appear in the Magistrates’ Court to answer to the speeding charge and to another charge for a summary driving offence. He was convicted on both charges. He was found to have been driving at 149 km/h in a 100 km/h zone. He was fined an aggregate amount and his licences were suspended for the minimum period (12 months) specified by the Road Safety Act 1986 (‘RSA’) for exceeding the speed limit by 45 km/h or more. The appellant now claims that the admissible evidence before the Magistrate’s Court was insufficient to support a finding of guilt beyond reasonable doubt on the speeding charge; or, at least, insufficient to support a finding beyond reasonable doubt that he exceeded the speed limit by 45 km/h or more.
However, the appellant does not dispute that the six circumstances referred to above obtained. The informant’s statement in the preliminary brief alleged that the appellant was driving at 149 km/h in a 100 km/h zone on the relevant occasion. Additional details identifying the offending were included. In the circumstances, in my view, the Magistrate was entitled to act on the informant’s statement. He was entitled to find the accused guilty accordingly. And he was entitled to punish the accused on the basis that he had exceeded the speed limit by 45 km/h or more. It was not necessary for the charges to be fully supported by strictly admissible evidence.
Even if I be wrong as to the proper interpretation of the CPA, it happens that, in my view, there was ample admissible evidence in the preliminary brief to support a finding of guilt beyond reasonable doubt on the speeding charge itself. On the other hand, I would accept that the admissible evidence in the preliminary brief would have been insufficient to prove beyond reasonable doubt at a contested hearing that the appellant exceeded the speed limit by 45 km/h or more.
Nevertheless, for the reasons summarised above as to the effect of the relevant provisions of the CPA, to which I will now turn in more detail, the appeal will be dismissed.
The relevant provisions of the CPA
Section 84 of the CPA is the centrally relevant provision for present purposes. However, it can only be properly understood in its context.[1] So far as the CPA itself is concerned, the relevant context is supplied principally by ss 37, 38, 80 and 83. However, there are several other provisions of the CPA that should be noted also. It is desirable to set out these various provisions in the order in which they appear in the CPA, as follows:[2]
[1]In AB v Western Australia (2011) 244 CLR 390, 398 [10], the High Court said that the modern approach to statutory interpretation used ‘context’ in its widest sense, to include the existing state of the law and the mischief to which the legislation is addressed.
[2]Patman v Fletcher’s Fotographics Pty Ltd (1984) 6 IR 471, 474-5 (NSWCA, Priestley JA) and see further below under the heading ‘Resolution of the main issue’.
Chapter 1—Preliminary
1 Purposes
The purposes of this Act are—
(a)to clarify, simplify and consolidate the laws relating to criminal procedure in the Magistrates' Court, the County Court and the Supreme Court;
(b)to introduce a new procedure permitting the service of a notice to appear in the Magistrates' Court;
(c)to provide new pre-trial disclosure requirements for the prosecution;
...
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3 Definitions
In this Act—
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appear, in relation to a party, has the meaning given in section 328;
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attend, in relation to a person, means—
(a)be physically present in court; or
(b)if authorised or required to do so under Division 2 or 3 of Part IIA of the Evidence (Miscellaneous Provisions) Act 1958, appear or be brought before the court by audio visual link;
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contest mention hearing means a hearing under section 55;
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full brief means a full brief described in section 41;
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mention hearing means a hearing referred to in section 53;
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preliminary brief means a preliminary brief described in section 37;
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return date, in relation to a criminal proceeding in the Magistrates' Court, means the first date on which the proceeding is listed before the court;
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Chapter 2—Commencing a criminal proceeding
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Part 2.3—Notifying accused of court appearance
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Division 2—Notice to appear
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24 Preliminary brief to be served if charge-sheet filed
If a charge-sheet is filed in accordance with section 22(1), the informant must—
(a)serve a preliminary brief on the accused within 21 days after the day on which the charge-sheet is filed; and
(b)on the return date have available a copy of the preliminary brief for provision to the accused or the legal practitioner representing the accused, on request.
Notes
1 Section 36 sets out how a preliminary brief must be served.
2 Section 37 sets out the contents of a preliminary brief, including a copy of the charge-sheet.
25 Non-appearance of accused served with notice to appear
(1)If a charge-sheet containing a charge for a summary offence is filed against an accused in accordance with section 22(1) and the accused does not appear in answer to the notice to appear, the Magistrates' Court may—
(a)issue a warrant to arrest the accused; or
(b)proceed to hear and determine the charge in the absence of the accused in accordance with Division 10 of Part 3.3; or
(c)adjourn the proceeding on any terms that it considers appropriate.
(2)If a charge-sheet containing a charge for an indictable offence that may be heard and determined summarily is filed against an accused in accordance with section 22(1) and the accused does not appear in answer to the notice to appear, the Magistrates’ Court may issue a warrant to arrest the accused.
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Chapter 3—Summary procedure
Part 3.1—When a summary hearing may be held
27 Summary offences
A charge for a summary offence is to be heard and determined summarily in accordance with this Chapter or, if the case requires, Division 1 of Part 5.8.
Note
The procedure set out in the Fines Reform Act 2014 may be used instead of commencing a proceeding for certain offences. See section 99 of the Magistrates' Court Act 1989.
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Part 3.2—Procedure before summary hearing
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Division 2—Pre-hearing disclosure of prosecution case
35 When preliminary brief is to be served
(1)If required to do so by section 24, the informant must serve a preliminary brief on the accused.
(2)At any time after the commencement of a proceeding, the accused, by written notice to the informant, may request that a preliminary brief be served.
(3)If the accused gives notice under subsection (2), the informant must serve on the accused a preliminary brief within 14 days after receipt of the notice.
(4)Nothing in this section prevents the informant from serving a preliminary brief on the accused at any other time.
36 How preliminary brief must be served
(1)A preliminary brief must be served personally on the accused in accordance with section 391 unless the informant is satisfied that ordinary service is appropriate in all the circumstances.
Note
Section 394 provides for ordinary service.
(2)In considering whether to effect service of a preliminary brief by ordinary service, the informant must consider whether it is an appropriate method of service in all the circumstances as known by the informant including—
(a)the nature and gravity of the alleged offence;
(b)whether the accused has previously been found guilty or convicted of any similar offence;
(c)the period of time that has elapsed since the accused's address for service was ascertained;
(d)the manner of service of the summons to answer to the charge.
37 Contents of preliminary brief
(1)A preliminary brief must include—
(a)a copy of the charge-sheet in respect of the alleged offence; and
(b)a notice in the form prescribed by the rules of court—
(i)explaining this section and section 84; and
(ii)explaining the importance of the accused obtaining legal representation; and
(iii)advising that the accused has the right, if eligible, to legal aid under the Legal Aid Act 1978; and
(iv)providing details of how to contact Victoria Legal Aid; and
(c)a statement made by the informant personally that complies with subsection (2) and section 38; and
(d)any evidentiary certificate issued under any Act that is likely to be relevant to the alleged offence and is available at the time the preliminary brief is served; and
(e)a copy of the criminal record of the accused that is available at the time the preliminary brief is served or a statement that the accused has no previous convictions or infringement convictions known at that time; and
(f)if the informant refuses to disclose any information, document or thing that is required to be included in the preliminary brief, a written notice that the informant refuses disclosure under section 45, identifying the ground for refusing disclosure; and
(g)a list of any other orders that are or will be sought, as known at the time of preparation of the preliminary brief.
(2)A statement by the informant in a preliminary brief must be a complete and accurate statement of the material available to the prosecution at the time the statement is sworn, signed or attested and must include—
(a)a statement of the alleged facts on which the charge is based, including reference to the material available to the prosecution to support the alleged facts; and
(b)a description of the background to and consequences of the alleged offence, if known; and
(c)a summary of any statements made by the accused concerning the alleged offence, including any confession or admission; and
(d)a list of the names of all persons who, at the time the statement is signed, may be called by the prosecution as witnesses at the hearing of the charge, indicating whether those persons have made statements; and
(e)a list of any things the prosecution may tender as exhibits, indicating whether they are in the possession of the prosecution at the time the statement is signed.
(3)A preliminary brief may include any other information, document or thing that is relevant to the alleged offence and may assist the accused in understanding the evidence against the accused that is available to the prosecution.
Example
Statements of key witnesses may be included in the preliminary brief.
Notes
1If the Magistrates' Court hears and determines a charge in the absence of the accused, section 84 provides that certain documents in a preliminary brief served on the accused at least 14 days before the hearing date are admissible in evidence.
2See section 86 as to proof of criminal record in the absence of the accused.
38 Requirements for informant's statement in preliminary brief
A statement by the informant in a preliminary brief must be—
(a)in the form of an affidavit; or
(b)signed by the informant and contain an acknowledgment signed in the presence of a person referred to in Schedule 3 that the statement is true and correct and is made in the belief that a person making a false statement in the circumstances is liable to the penalties of perjury; or
(c)in a form, and attested to in a manner, prescribed by the rules of court.
Note
Section 414 provides for acknowledgment of false statements.
39 When full brief must be served
(1)The accused, by written notice to the informant, may request that a full brief be served.
(1A)A request under subsection (1) may be made—
(a)if a preliminary brief is served within 21 days after the day on which the charge-sheet is filed, at any time after a summary case conference is held; or
(b)in any other case, at any time after the criminal proceeding has commenced.
(2)If the accused gives a notice under subsection (1), the informant must serve a full brief on the accused at least 14 days before—
(a)the contest mention hearing; or
(b)if a contest mention hearing is not held, the summary hearing.
(3)The Magistrates' Court, by order, may vary the date for service of a full brief to a specified date that is earlier or later than the date for service required by subsection (2).
(4)Nothing in this section prevents agreement between the informant and the accused to more limited disclosure than is required in a full brief.
40How full brief must be served
(1)A full brief must be served personally on the accused in accordance with section 391 unless the informant is satisfied that ordinary service is appropriate in all the circumstances.
Note
Section 394 provides for ordinary service.
(2)In considering whether to effect service of a full brief by ordinary service, the informant must consider whether it is an appropriate method of service in all the circumstances as known by the informant including—
(a)the nature and gravity of the alleged offence;
(b)whether the accused has previously been found guilty or convicted of any similar offence;
(c)the period of time that has elapsed since the accused's address for service was ascertained;
(d)the manner of service of the summons to answer to the charge.
41 Contents of full brief
(1)Unless earlier disclosed to the accused, whether in a preliminary brief, at a summary case conference or otherwise, a full brief must contain—
(a)a notice in the form prescribed by the rules of court—
(i)explaining this section and section 83; and
(ii)explaining the importance of the accused obtaining legal representation; and
(iii)advising that the accused has the right, if eligible, to legal aid under the Legal Aid Act 1978; and
(iv)providing details of how to contact Victoria Legal Aid; and
(b)a copy of the charge-sheet relating to the alleged offence; and
(c)a copy of the criminal record of the accused or a statement that the accused has no previous convictions or infringement convictions; and
(d)any information, document or thing on which the prosecution intends to rely at the hearing of the charge including—
(i)a copy of any statement relevant to the charge signed by the accused, or a record of interview of the accused, that is in the possession of the informant; and
(ii)a copy, or a transcript, of any audio recording or audiovisual recording required to be made under Subdivision (30A) of Division 1 of Part III of the Crimes Act 1958; and
(iii)a copy or statement of any other evidentiary material that is in the possession of the informant relating to a confession or admission made by the accused relevant to the charge; and
(iv)a list of the persons the prosecution intends to call as witnesses at the hearing, together with a copy of each of the statements made by those persons; and
Note
See section 47 for requirements for statements.
(v)a legible copy of any document which the prosecution intends to produce as evidence; and
(vi)a list of any things the prosecution intends to tender as exhibits; and
(vii)a clear photograph, or a clear copy of such a photograph, of any proposed exhibit that cannot be described in detail in the list; and
(viii)a description of any forensic procedure, examination or test that has not yet been completed and on which the prosecution intends to rely as tending to establish the guilt of the accused; and
(ix)any evidentiary certificate issued under any Act that is likely to be relevant to the alleged offence; and
(e)any other information, document or thing in the possession of the prosecution that is relevant to the alleged offence including—
(i)a list of the persons (including experts) who have made statements or given information relevant to the alleged offence but who the prosecution does not intend to call as witnesses at the hearing; and
(ii)a copy of every statement referred to in subparagraph (i) made by each of those persons or, if the person has not made a statement, a written summary of the substance of any evidence likely to be given by that person or a list of those statements or written summaries; and
(iii)a copy of every document relevant to the alleged offence that the prosecution does not intend to tender as an exhibit at the hearing or a list of those documents; and
(iv)a list containing descriptions of any things relevant to the alleged offence that the prosecution does not intend to tender as exhibits at the hearing; and
(v)a clear photograph, or a clear copy of such a photograph, of any thing relevant to the alleged offence that cannot be described in detail in the list; and
(vi)a copy of—
(A)records of any medical examination of the accused; and
(B)reports of any forensic procedure or forensic examination conducted on the accused; and
(C)the results of any tests—
carried out on behalf of the prosecution and relevant to the alleged offence but on which the prosecution does not intend to rely; and
(vii)a copy of any other information, document or thing required by the rules of court to be included in a full brief; and
(f)if the informant refuses to disclose any information, document or thing that is required to be included in the full brief, a written notice that the informant refuses disclosure under section 45, identifying the ground for refusing disclosure.
(2)Section 48 applies to information and other material supplied in a full brief.
Notes
1See section 416 as to the prosecution's general obligation of disclosure.
2Section 39(4) enables an informant and an accused to agree to the provision of less material in the full brief than is required by section 41.
3If the Magistrates' Court hears and determines a charge in the absence of the accused, section 83 provides that certain documents in a full brief served on the accused are admissible in evidence.
4See section 86 as to proof of criminal record in the absence of the accused.
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43 Accused may make request for material etc. not provided
(1)The accused may give to the informant a written request for—
(a)a copy of any statements made or information given by persons listed in a full brief;
(b)a copy of any things listed in a full brief;
(c)subject to section 43A, inspection of the exhibits at a time and place agreed between the accused and the informant;
(d)a copy of any information, document or thing specified by the accused that is required by or under this Act to be included in a preliminary brief or a full brief, as the case may be, and was not so included;
(e)particulars of previous convictions of any witness who the prosecution intends to call at the hearing.
(2)Subject to subsection (3), a request under subsection (1) may be made at any time after service of the preliminary brief or the full brief, whichever first occurs.
(3)Unless the Magistrates' Court otherwise orders, a request under subsection (1) must be made at least 7 days before—
(a)the contest mention hearing; or
(b)if a contest mention hearing is not held, the summary hearing.
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44 Informant must comply with request or state grounds of refusal
(1)Within 7 days after the informant receives a request under section 43, the informant must comply with the request or serve on the accused a written notice that the informant refuses to comply with the request, identifying the grounds for refusing disclosure.
(2)The Magistrates' Court may vary a time limit referred to in this section.
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47 Rules with respect to statements
(1)Subject to subsection (3), a statement referred to in section 41 which the informant intends to tender at the hearing of the charge if the accused does not appear must be—
(a)in the form of an affidavit; or
(b)signed by the person making the statement and contain an acknowledgment signed in the presence of a person referred to in Schedule 3 that the statement is true and correct and is made in the belief that a person making a false statement in the circumstances is liable to the penalties of perjury; or
(c)in a form, and attested to in a manner, prescribed by the rules of court.
(2)If a person under the age of 18 years makes a statement which the informant intends to tender as mentioned in subsection (1), the statement must include the person's age.
(3)If a person who cannot read makes a statement which the informant intends to tender as mentioned in subsection (1)—
(a)the statement must be read to the person before he or she signs it; and
(b)the acknowledgment must state that the statement was read to the person before he or she signed it.
Note
Section 414 provides for acknowledgment of false statements.
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Division 4—Mention hearing, summary case conference and contest mention hearing
53 Mention hearing
At a mention hearing, the Magistrates' Court may—
(a)if the offence is an indictable offence that may be heard and determined summarily, grant a summary hearing;
(b)proceed immediately to hear and determine the charge;
(c)fix a date for a contest mention hearing;
(d)fix a date for a summary hearing of the charge;
(e)make any other order or give any direction that the court considers appropriate.
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55 Contest mention hearing
(1)This section applies to a proceeding for—
(a)a summary offence; or
(b)an indictable offence that may be heard and determined summarily.
(2)The Magistrates' Court may, between the return date and the day on which the charge is heard, from time to time conduct a contest mention hearing.
(3)At a contest mention hearing, the Magistrates' Court may—
(a)require the parties to provide an estimate of the time expected to be needed for the hearing of the charge;
(b)require the parties to advise as to the estimated number and the availability of witnesses (other than the accused) for the hearing of the charge and whether any witnesses are from interstate or overseas;
(c)request each party to indicate the evidence that party proposes to adduce and to identify the issues in dispute;
(d)require the accused to advise whether the accused is legally represented and has funding for continued legal representation up to and including the hearing of the charge;
(e)require the parties to advise whether there are any particular requirements of, or facilities needed for, witnesses and interpreters;
(f)order a party to make, file in court or serve (as the case requires) any written or oral material required by the court for the purposes of the proceeding;
(g)allow a party to amend a document that has been prepared by or on behalf of that party for the purposes of the proceeding;
(h)if the court considers that it is in the interests of justice to do so, dispense with or vary any requirement imposed on a party by or under this Part;
(i)require or request a party to do anything else for the case management of the proceeding.
(4)The accused must attend all contest mention hearings.
Notes
1Section 3 defines attend.
2See section 334 in relation to a corporate accused.
3Section 330 gives the court power to excuse an accused from attending a hearing.
Part 3.3—Summary hearing
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Division 10—Non-appearance of party
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79 Non-appearance of informant
If the informant in a criminal proceeding does not appear on the date on which the proceeding is listed for hearing, the Magistrates' Court may—
(a)dismiss the charge; or
(b)adjourn the proceeding on any terms that it considers appropriate.
Note
Section 328 sets out who may appear on behalf of an informant.
80 Non-appearance of accused charged with summary offence
(1)If an accused does not appear in answer to a summons to answer to a charge for a summary offence, the Magistrates' Court may—
(a)if the summons was served in accordance with section 394 (ordinary service), direct that the accused be served personally with the summons; or
(b)issue a warrant to arrest the accused; or
(c)proceed to hear and determine the charge in the absence of the accused in accordance with this Part; or
(d)adjourn the proceeding on any terms that it considers appropriate.
Note
Section 328 sets out who may appear on behalf of an accused.
(2)If an accused has been charged with a summary offence and fails to attend in answer to bail, the Magistrates' Court may—
(a)proceed to hear and determine the charge in the absence of the accused in accordance with this Part; or
(b)adjourn the proceeding on any terms that it considers appropriate—
without prejudice to any right of action arising out of the breach of the bail undertaking.
(3)If the Magistrates' Court proceeds to hear and determine a charge under subsection (1)(c) or (2)(a), the court may dispense with or vary any requirement imposed by or under this Part.
Note
See section 25 for consequences of failing to appear in answer to a notice to appear.
81 Non-appearance of accused charged with indictable offence
If an accused does not appear in answer to a summons to answer to a charge for an indictable offence which has been served in accordance with this Act, the Magistrates' Court may issue a warrant to arrest the accused.
Notes
1Section 25 sets out the consequences of failing to appear in answer to a notice to appear.
2Section 328 sets out who may appear on behalf of an accused.
82 Non-appearance of corporate accused charged with indictable offence
(1)If a corporate accused does not appear in answer to a summons to answer to a charge for an indictable offence that may be heard and determined summarily, the Magistrates' Court may hear and determine the charge summarily in the absence of the accused if—
(a)the court is satisfied that the charge and the return date in relation to it have been brought to the notice of the accused; and
(b)the court considers that the charge is appropriate to be determined summarily—
even though the accused has not consented to a summary hearing.
(2)If the Magistrates' Court proceeds to hear and determine a charge summarily in accordance with subsection (1), the court may dispense with or vary any requirement imposed by or under this Part.
(3)If the Magistrates' Court finds a corporate accused guilty in its absence, the court must cause written notice of any sentence imposed by it to be served on the accused.
83 Admissibility of evidence in absence of accused where full brief served
(1)If—
(a)under section 25(1) or 80 the Magistrates' Court proceeds to hear and determine a charge in the absence of the accused; and
(b)the informant has served a full brief on the accused in accordance with Division 2 of Part 3.2—
the following are, subject to subsections (2) and (3), admissible as if their contents were a record of evidence given orally—
(c)any statement a copy of which has been served in the full brief;
(d)any exhibit or document referred to in a statement which is admissible.
(2)The Magistrates' Court may rule as inadmissible the whole or any part of a statement or of any exhibit or document referred to in a statement.
(3)The criminal record of the accused or a statement that the accused has no previous convictions or infringement convictions, when served in a full brief, is only admissible for the purpose of sentencing in accordance with section 86.
(4)Subsection (1) does not limit the power of the Magistrates' Court to proceed to hear and determine the charge in the absence of the accused under section 25(1) or 80 on the basis of sworn evidence given by or on behalf of the informant if the informant has not served a full brief on the accused.
84 Admissibility of evidence in absence of accused where preliminary brief served
(1)If—
(a)under section 25(1) or 80 the Magistrates' Court proceeds to hear and determine a charge in the absence of the accused; and
(b)the informant has served a preliminary brief on the accused in accordance with Division 2 of Part 3.2 at least 14 days before the date of the hearing under paragraph (a); and
(c)the Magistrates' Court considers that the matters set out in the preliminary brief disclose the offence charged—
the following are, subject to subsections (4) and (5), admissible in evidence, despite the rule against hearsay—
(d)the informant's statement in the preliminary brief;
(e)any exhibit referred to in the informant's statement.
(2)Without limiting any other power conferred on the Magistrates' Court, if the court considers that the matters set out in a preliminary brief do not disclose the offence charged, the court may require the informant to provide additional evidence.
(3)The additional evidence referred to in subsection (2) is inadmissible unless—
(a)it is in the form of written statements that comply with section 38; and
(b)a copy of each statement has been served on the accused at least 14 days before the Magistrates' Court considers the additional evidence.
(4)The Magistrates' Court may rule as inadmissible the whole or any part of a preliminary brief, a statement or an exhibit.
(5)The criminal record of the accused or a statement that the accused has no previous convictions or infringement convictions, when served in a preliminary brief, is only admissible for the purpose of sentencing in accordance with section 86.
(6)This section does not limit the power of the Magistrates' Court to proceed to hear and determine the charge in the absence of the accused under section 25(1) or 80 on the basis of sworn evidence given by or on behalf of the informant if the informant has not served a preliminary brief on the accused.
85Non-appearance of accused—Infringements Act 2006
(1)This section applies to an infringement offence within the meaning of the Infringements Act 2006 in respect of which an election to have the matter of the offence heard and determined in the Magistrates' Court under Part 2 of that Act has been made.
(2)Without limiting any other power of the Magistrates' Court, if the accused fails to appear and the Magistrates' Court proceeds to hear and determine the charge in the absence of the accused under section 80, the court may hear and determine the charge based on the prescribed information lodged under section 40(1)(a) of that Act (as the case requires).
86 Proof of criminal record in absence of accused
(1)If—
(a)an accused is charged with a summary offence; and
(b)it is alleged that the accused has previous convictions or infringement convictions—
there may be served on the accused a copy of the criminal record of the accused.
Notes
1See section 77 as to contents of a criminal record.
2A copy of the criminal record of the accused is included in the preliminary brief (section 37) or, if a preliminary brief is not served, in the full brief (section 41).
(2)If the Magistrates' Court—
(a)finds the accused guilty in the absence of the accused; and
(b)is satisfied that a copy of the criminal record of the accused was served on the accused at least 14 days before the hearing of the charge—
the criminal record is admissible only for the purpose of sentencing and—
(c)is evidence that the accused has the previous convictions and infringement convictions set out in the criminal record; and
(d)is evidence of the particulars set out in the criminal record.
87 Limitations on sentencing in absence of accused
(1)If the Magistrates' Court proceeds to hear and determine a charge in the absence of the accused and finds the accused guilty, the court must not make a custodial order under Division 2 of Part 3 of the Sentencing Act 1991.
(2)If the Magistrates' Court finds an accused guilty in the absence of the accused on the basis of a preliminary brief—
(a)the court must not make an order under Part 3B of the Sentencing Act 1991 for a fine exceeding 20 penalty units and the total sum of orders for fines must not exceed in the aggregate 50 penalty units; and
(b)the total sum of orders made under Divisions 1 and 2 of Part 4 of the Sentencing Act 1991 for the payment of restitution or compensation must not exceed $2000.
Note
In addition to this section, the court cannot make an order that requires the consent of the accused to its making, for example, a community correction order.
(3)If, at any time during the hearing, the Magistrates' Court considers that the charge, if proven, is likely to result in an order prohibited by subsection (1) or (2) or an order that requires the consent of the accused, the court—
(a)must adjourn the proceeding to enable the accused to attend or to be brought before the court to answer to the charge; and
(b)may issue a warrant to arrest the accused.
(4)If the Magistrates' Court finds a charge against a person proved and imposes a sentence in the absence of the person, the court must serve written notice on the person, at the address of the person on the register kept under section 18 of the Magistrates' Court Act 1989, of—
(a)the order of the court; and
(b)their right to apply for a rehearing of the charge.
Note
Part 3.4 provides for a rehearing in certain circumstances. In particular, section 94 provides for automatic rehearing in certain cases.
Part 3.4—Rehearing
88 Right to apply for rehearing
If a sentence is imposed by the Magistrates' Court in a criminal proceeding on a person who did not appear in the proceeding, that person, or the informant on that person's behalf, may apply to the Magistrates' Court for an order that the charge be reheard.
89 Notice of intention to apply for rehearing
A notice of intention to apply for a rehearing must—
(a)state the reason why the person on whom the sentence was imposed did not appear in the proceeding; and
(b)be filed with the registrar at the venue of the Magistrates' Court at which the sentence was imposed.
...
94 Automatic rehearing in certain cases
(1)On an application under section 88, if—
(a)the charge-sheet was served in accordance with section 394 (ordinary service); and
(b)the Magistrates' Court is satisfied that the charge-sheet was not brought to the notice of the applicant prior to the hearing of the charge—
the court must set aside any findings and orders made in the earlier proceeding and rehear the charge.
(2)If a person is served with a notice under section 87(4) and applies under section 88 for a rehearing of the charge within 28 days after the date of service of the notice, the Magistrates' Court must set aside the findings and orders made in the earlier proceeding and rehear the charge.
Note
Chapter 8 contains general provisions that apply to all criminal proceedings.
...
Chapter 8—General
Part 8.1—Conduct of proceeding
328 Appearance
A party to a criminal proceeding may appear—
(a)personally; or
(b)by a legal practitioner or other person empowered by law to appear for the party; or
...
329 When accused etc. is required to appear at hearing
(1)An accused must appear at every hearing in the criminal proceeding against the accused, unless otherwise provided by this Act or the rules of court.
(2)A party to an appeal who was the accused in the criminal proceeding to which the appeal relates must appear at every hearing in the appeal, unless otherwise provided by this Act or the rules of court.
(3)The court may excuse a person from appearing at a hearing.
Notes
1See section 328 for the ways in which an accused may appear.
2Division 3 of Part IIA of the Evidence (Miscellaneous Provisions) Act 1958 authorises or requires the appearance of an accused before the court by audio visual link in certain circumstances.
330 When accused etc. is required to attend hearing
(1)An accused must attend a hearing in the criminal proceeding against the accused if—
(a)this Act or the rules of court require the attendance of the accused at the hearing; or
(b)the accused has been remanded in custody or granted bail to attend the hearing; or
(c) the court requires the attendance of the accused at the hearing.
(2)A party to an appeal who was the accused in the criminal proceeding to which the appeal relates must attend a hearing in the appeal if—
(a)this Act or the rules of court require the attendance of the party at the hearing; or
(b)the party has been remanded in custody or granted bail to attend the hearing; or
(c)the court requires the attendance of the party at the hearing.
(3)The court may excuse a person from attending a hearing.
(4)If a person fails to attend when required under subsection (1)(a), (1)(b), (2)(a) or (2)(b), the court may issue a warrant to arrest the person.
(5)If a person fails to attend when required under subsection (1)(c) or (2)(c), the court may issue a warrant to arrest the person if the court is satisfied that the person has had reasonable notice of the requirement to attend.
Notes
1Section 3 defines attend.
2Section 100(2) provides for the attendance of an accused at hearings in a committal proceeding.
3Section 246 provides for the attendance of an accused at hearings conducted under Chapter 5 (Trial on Indictment).
The parties’ submissions
The appellant’s notice of appeal assumed, and his initial written submissions asserted (in effect), that, even having regard to all of the provisions of the CPA referred to above, and even where all of the circumstances referred to in paragraph 1 above obtain, the charge against the absent accused must still be strictly proven beyond reasonable doubt by admissible evidence. The appellant must further say that the same applies even if the failure of the accused to appear was not excused under s 329(3) and was deliberate; and also that the same applies notwithstanding that even such an accused has an automatic right of rehearing under s 94(2).
Thus, in paragraphs 9 and 10 of his initial written submissions,[3] the appellant said:
[3]Appellant’s outline of submissions dated 26 October 2017.
In Hannon v Norman [2006] VSC 228 His Honour Justice Gillard stated at paragraph 21:
The fact that the defendant did not appear does not entitle the prosecution to obtain a conviction without proper proof of the elements of the charge. Whilst the objection to the tendering of inadmissible evidence may be waived by a litigant present at a hearing, the mere absence of the litigant does not entitle the Court to ignore the principles of evidence. Where a proceeding is heard ex parte, it is incumbent upon the Court to closely examine the evidence to ensure that it is admissible. It would appear that neither the magistrate nor the prosecutor fully understood the requirements of the Act and the Schedule with respect to an ex parte hearing, where a brief of evidence had been served pursuant to s.37.[4]
The above reasoning was applied in Challis v. Williams [2013] VSC 490. Subsequently in McWhirter v Dunlop; Tran v Harris [2013] VSC 697, His Honour Justice Dixon followed each of those cases stating in paragraph 37:
I agree, with respect, with both Gillard J and Williams J when they describe the limits to which a preliminary brief may be put and, in particular that the obligation remains with the prosecution to properly prove the elements of the charge.
[4]I would interpolate that the reference by Gillard J to s 37 was not a reference to s 37 of the CPA but rather a reference to s 37 of the Magistrates’ Court Act 1989, a provision which has since been repealed.
It can be seen immediately that Hannon v Norman[5] was decided in 2006, before the introduction of the CPA. For that reason and other reasons, as further indicated below, I consider that Hannon v Norman must be distinguished from the present case; and that the passage quoted by the appellant was wrongly applied to the relevant provisions of the CPA in Challis v Williams[6] and McWhirter v Dunlop; Tran v Harris (‘McWhirter’).[7]
[5][2006] VSC 228.
[6][2013] VSC 490.
[7][2013] VSC 697. See further below for two subsequent cases in which Hannon v Norman was, in my view, misapplied, directly or indirectly.
However, that was not the initial position in this Court of the respondent, Leading Senior Constable Johnson, who was the informant in the Magistrates’ Court. Rather, the respondent’s initial position in this Court was merely to the effect that there had in fact been sufficient admissible evidence in the preliminary brief to found the charge (including the allegation that the appellant’s speed had reached 149 km/h) or, if not, that the matter should be remitted to the Magistrates’ Court to enable the informant to adduce further evidence of the appellant’s speed.[8]
[8]Respondent’s undated outline of submissions filed 28 November 2017.
However, courts are not bound by the positions of the parties as to the proper construction of statutory provisions, nor by their counsel’s submissions in that regard.[9] I was troubled about the shared initial position of the parties. At the hearing, I invited counsel on both sides to give this and certain other aspects of the case further consideration. Both counsel sought time to file and serve further written submissions to deal with these matters. A timetable was fixed accordingly, with the respondent to go first.
[9]Accident Towing and Advisory Committee v Combined Motor Industries Pty Ltd [1987] VR 529, 547 (McGarvie J); Coleman v Power (2004) 220 CLR 1, 93-94 [243] (Kirby J); D C Pearce and R S Geddes, Statutory Interpretation in Australia (LexisNexis Butterworths, 8th ed, 2014) 7-8 [1.6].
The respondent has now departed from his original position. He now contends that the Magistrate was indeed entitled to act on the informant’s statement in the preliminary brief without the charge needing to be established by strictly admissible evidence.
In his post-hearing written submissions, the respondent sets out, first, s 84 of the CPA (emphasising s 84(1)(c), in so far as it refers to the Magistrates’ Court considering that ‘the matters set out in the preliminary brief disclose the offence charged’); and, second, s 37 of the CPA (emphasising the reference in s 37(2)(a) to ‘a statement of the alleged facts’).[10]
[10]Respondent’s undated further submissions filed 22 March 2018, [2]-[3].
The respondent submits that the intent of ss 84 and 37, read together, is to provide a ‘streamlined system’.[11]
[11]Ibid, [4].
Though acknowledging that the task of interpreting these provisions involves a consideration of the words of the provisions themselves,[12] rather than by reference to constructions placed on any statutory predecessor,[13] the respondent submits that the history of the sections may assist the Court in determining the intent of s 84. The respondent submits that s 84 has its origins in sch 2 cl 6 of the Magistrates’ Court Act 1989 (‘MCA’). He points out that sch 2 cl 6 was inserted by the Criminal Justice Legislation (Miscellaneous Amendments) Act 2002 (‘the 2002 amending legislation’). The respondent quotes only paragraphs (1) to (3) of cl 6, but it is desirable to set out here the whole of cl 6:
[12]R v Getachew (2012) 248 CLR 22, 27-28 [11].
[13]Baini v R (2012) 246 CLR 469, 477 [15].
6 Non-appearance of defendant—outline of evidence
(1)If—
(a)under section 41(2) or (3) the Court proceeds to hear and determine the charge in the defendant's absence; and
(b)the informant has served an outline of evidence on the defendant in accordance with section 37A not less than 14 days before the mention date; and
(c)the Court considers that the matters set out in the outline of evidence disclose the offence charged—
the following are admissible in evidence, despite the rule against hearsay—
(d)the outline of evidence referred to in section 37A(1);
(e)any exhibit referred to in the outline of evidence.
(2)Without limiting any other power conferred on the Court, if the Court considers that the matters set out in an outline of evidence do not disclose the offence charged, the Court may require the informant to provide additional evidence.
(3)The additional evidence referred to in sub-section (2) is inadmissible unless—
(a)it is in the form of written statements that comply with section 37A(3); and
(b)a copy of each statement has been served on the defendant not less than 14 days before the Court considers the additional evidence.
(4)The Court must reject a statement, or any part of a statement, tendered in a proceeding if the statement or part is inadmissible because of this clause.
(5)The Court may rule as inadmissible the whole or any part of an outline of evidence, a statement or an exhibit.
(6)If the Court finds a defendant guilty in the defendant's absence on the basis of an outline of evidence—
(a)the Court must not make a custodial order under Division 2 of Part 3 of the Sentencing Act 1991; and
(b)the Court must not make a community-based order under Division 3 of Part 3 of the Sentencing Act 1991; and
(c)the Court must not make an order for a fine exceeding 20 penalty units under Division 4 of Part 3 of the Sentencing Act 1991 and the total sum of orders for fines must not exceed in the aggregate 50 penalty units; and
(d)the total sum of orders made under Divisions 1 and 2 of Part 4 of the Sentencing Act 1991 for the payment of restitution or compensation must not exceed $2000.
(7)If, at any time during the hearing, the Court considers that the charge, if proved, is likely to result in an order prohibited by sub-clause (6), the Court—
(a)must adjourn the proceeding to enable the defendant to appear or to be brought before the Court to answer to the charge; and
(b)may issue a warrant to arrest the defendant.
(8)Except as provided by section 90 of the Road Safety Act 1986, the Court must not be informed of nor have regard to any prior convictions or findings of guilt of the defendant.
(9)If the Court finds a charge against a person proven and makes a sentencing order in their absence, the Court must give by post written notice to the person, at the address on the register, of—
(a)the order of the Court; and
(b)their right to apply for a re-hearing of the charge.
(10)If a person is served with a notice under sub-clause (9) and applies under section 93 for a re-hearing of the charge within 28 days after the date of service of the notice, the Court must set aside the sentencing order and re-hear the charge.
(11)This clause does not limit the power of the Court to proceed to hear and determine the charge in the defendant's absence under section 41(2) or (3) on the basis of evidence on oath given by or on behalf of the informant if the informant had not served an outline of evidence on the defendant in accordance with section 37A.
The respondent submits that, relevantly, the terms of sch 2 cl 6 of the MCA are mirrored in s 84 of the CPA, though the new provisions update the language from ‘outline of evidence’ to ‘preliminary brief’. According to the respondent, the concept of an outline of evidence under the MCA was similar to the current concept of a preliminary brief under the CPA. He refers in this regard to s 37A of the MCA, which was, as indicated above, referred to in paragraphs (1) and (3) of sch 2 cl 6 and which was inserted into the MCA by the (same) 2002 amending legislation. He quotes sub-sections (1) to (5) of s 37A of the MCA, as follows:
37A Service of outline of evidence on defendant
(1)The informant may serve on the defendant, in the case of a charge for a summary offence, an outline of evidence and a notice in the prescribed form explaining this section and clause 6 of Schedule 2.
(2)An outline of evidence is a statement by the informant—
(a)describing the nature and circumstances of the alleged offence, including—
(i)the background and consequences of the alleged offence; and
(ii)the comments or statements, if any, made by the defendant concerning the alleged offence; and
(b)including—
(i)the names of all persons who may be called to give evidence by or on behalf of the informant at the hearing of the charge and indicating whether those persons have made statements; and
(ii)a list of any things that may be tendered as exhibits.
(3)An outline of evidence must be—
(a)in the form of an affidavit; or
(b)signed by the informant and must contain an acknowledgment signed in the presence of—
(i)a member of the police force of Victoria, of any other State or of an internal Territory; or
(ii)a member of the Australian Federal Police—
that the statement is true and correct and is made in the belief that a person making a false statement in the circumstances is liable to the penalties of perjury.
(4)Despite sub-section (3), a copy of an outline of evidence that—
(a)is served on the defendant; or
(b)is used for the purposes of clause 6 in Schedule 2—
need not bear the manual signature of the informant.
(5)An informant who acknowledges an outline of evidence which the informant knows at the time to be false is liable to the penalties of perjury.
The respondent submits that while there are differences of wording between the former s 37A of the MCA and the wording of the current provisions of s 37 of the CPA, nevertheless the extrinsic materials relating to the 2002 amending legislation provide some explanation as to the purpose of the provisions.
The respondent comments that the explanatory memorandum to the 2002 amending legislation does not expressly address the question whether ‘evidence’ of the allegations is required. However, he submits that the explanatory memorandum indicates that the intent of the relevant provisions was to provide for an alternative procedure to summarily hear matters where the accused does not appear. He relies in particular on the following passage in the explanatory memorandum:
[The relevant amendment] provides for an alternative procedure where a defendant to a charge for a summary offence does not appear at court. If the informant has, not less than 14 days before the first court date, served an outline of evidence on the defendant ..., then the Court has the discretion to proceed to hear and determine the case on the basis of the outline of evidence.
The Court may require further evidence to be provided.
The respondent contrasts this with sch 2 cl 5, which, together with s 41 of the MCA, provided for the hearing of a summary offence in the absence of the accused, but only where a brief of evidence had been provided.[14]
[14]Versions of s 41 and sch 2 cl 5 of the MCA were included in the MCA from its commencement in 1989 and remained largely unchanged until being replaced by the corresponding provisions (ss 37 and 83) of the CPA in 2010.
The respondent then turns to the second reading speech by the then Attorney-General, Mr Hulls, for the 2002 amending legislation, commenting that Mr Hulls had explained that the amendments were intended to ensure a more efficient system of summary hearing where the accused did not appear. The respondent quotes the following parts of Mr Hulls’ remarks:
Under the current process, where a defendant charged with a summary offence fails to appear at court on the first listed date, the hearing may be (and often is) adjourned for an ex parte hearing -- that is, a hearing in the defendant's absence. The Magistrates Court may only hear a matter ex parte if either the police have served a full brief of evidence on the defendant or the informant and other witnesses attend court and give evidence on oath. It is common for numerous adjournments to be made before the matter is finally dealt with ex parte. This process has proved cumbersome and inefficient.
The bill will reform the ex parte process by allowing the court to hear and determine the charges and sentence the defendant on the basis of an outline of evidence which has been served on the defendant.
Service of an outline of evidence was explained earlier, in the context of early disclosure of the police case. The present reform to ex parte procedure will provide for more efficient and timely disposal of ex parte criminal proceedings.
The savings in police time will be considerable.
At the same time, strong safeguards will be in place to ensure that the rights of defendants are properly protected. The safeguards include:
·the court must be satisfied that the outline of evidence was served on the defendant;
·the outline of evidence must be signed by the informant, who will be guilty of an offence if he or she knows it to be false;
…
·the defendant is to be informed in writing of their sentence under the ex parte procedure and their right to apply for a re-hearing;
·a defendant will have an automatic right to a re-hearing within 28 days of being notified of the outcome; thereafter, leave will usually be required; and
·the existing re-hearing and appeals processes will be preserved, including rights of appeal to the County Court.
The respondent comments that neither the explanatory memorandum nor the second reading speech includes an explicit explanation regarding the ‘presumption of admissibility’ that, he says, is contained in sch 2 cl 6 to the MCA.
Turning to the extrinsic materials relating to the Bill which became the CPA, the respondent comments that the explanatory memorandum refers to the nature of the clause which became s 84 of the CPA and to the ‘discretion’ which it confers on a Magistrate. In this respect, he points out, the explanatory memorandum said:
The court has a discretion to require the informant to provide additional evidence if the court considers that the matters set out in the preliminary brief do not disclose the offence charged. However, this additional evidence is only admissible if it is in the form of written statements complying with clause 38 and a copy of each statement has been served on the accused at least 14 days before the court considers it.
The court has a discretion to rule the whole or any part of a preliminary brief, statement or exhibit inadmissible.
The respondent observes that the second reading speech of the Attorney-General did not provide any additional guidance, in that Mr Hulls simply stated:
Chapter 3 makes other improvements to summary proceedings by clearly setting out the procedures to be followed in a summary hearing, including special provisions concerning proceedings conducted in the accused's absence.
The respondent reports having been unable to locate any cases that addressed the present issue in relation to the corresponding provisions of the MCA.[15] On the other hand, the respondent notes that there have been several decisions of this Court, on appeal from the Magistrates’ Court, referring to s 84 of the CPA. However, the respondent submits, those cases, except one, do not explore the nature or purpose of s 84, but ‘simply outline the effect of the provision in relying on statements by the informant or the accused’.[16] The one case was McWhirter.[17]
[15]But see my comment below in relation to the observations of Gillard J in Hannon v Norman [2006] VSC 228 with respect to ss 37 and 37A of the MCA.
[16]Respondent’s undated further submissions filed 22 March 2018, [15] citing Banks v Bice [2014] VSC 610, [3]; Rodger v Wojcik [2014] VSC 308, [25]; Challis v Williams [2013] VSC 490, [2].
[17][2013] VSC 697.
The respondent annexes to his further written submissions copies of the written submissions that had been filed on behalf of the respondents (Dunlop and Harris, respectively) in McWhirter.[18] Those submissions had been prepared and signed by Mr Chris Carr of counsel, for the then respondents. The facts of those cases were similar to the facts of the present case. In those cases (as in this), the appellant drivers maintained that there had not been due satisfaction of all of the conditions specified by and under s 79 of the RSA in respect of the admissibility (under that section) of evidence relating to the use by Police of speed measuring devices. The appellant drivers contended that this was fatal to the prosecutions.
[18]Ibid.
So far as relevant, the submissions prepared by Mr Carr on behalf of the respondents in McWhirter are now adopted by counsel for the present respondent. Mr Carr’s submissions challenged the assumption that had been made by the appellants in McWhirter that the Magistrates’ Court was bound to consider only ‘admissible evidence’ in exercising its jurisdiction pursuant to ss 80 and 84 of the CPA. The adopted submissions prepared by Mr Carr included the following presently relevant passages:
The jurisdiction exercised by the Magistrate’s Court is unusual. Resolution of this appeal requires close attention to the statutory context, particularly the concept of a “preliminary brief” and the discretion to determine a matter ex parte based upon a preliminary brief. Gillard J’s decision in Hannon v Norman [2006] VSC 228 deals with an entirely different statutory context, and is not of assistance on this issue.
The preliminary brief
The purpose of a preliminary brief is twofold. First, it is prepared at an early stage in summary proceedings in order to provide an outline of the prosecution case (a preliminary brief must be served by the informant on the accused within 14 days of receipt of a notice from the accused requiring such a brief.[19]) Secondly, as a matter of practice, it provides a factual basis [for the court to proceed upon] in uncontested matters.
[19]CPA s 35(3).
A preliminary brief must contain, relevantly, an affidavit or other statement attested to by the informant[20] which must include, inter alia:
[20]Or other material in the prescribed form: CPA s 38.
“(a) a statement of the alleged facts on which the charge is based, including reference to the material available to the prosecution to support the alleged facts; and
(b) a description of the background to and consequences of the alleged offence, if known; and(c) a summary of any statements made by the accused concerning the alleged offence, including any confession or admission…”[21] (emphasis added)
[21]CPA s 37(2).
The preliminary brief is not intended to contain material in a form which would be admissible upon application of the rules of evidence. It contains the facts alleged by the prosecution, and reference to the material available to support those facts (rather than the material itself). Only a summary of an admission or confession is required. Where an expert opinion is relied upon, only the expert’s conclusion will be necessary, without any reference to the assumptions or expertise of the expert.
Thus, it is apparent that the preliminary brief is not intended to contain material which would be admissible according to the rules of evidence. That is entirely consistent with the role of the preliminary brief as disclosing the prosecution case at a very early stage, before witness statements or other forms of admissible evidence are available, and providing a factual basis upon which to proceed in uncontested matters.
A preliminary brief is to be contrasted to a “full brief”. A full brief must be served upon notice by the accused, before a contest mention hearing, or summary hearing.[22] It is thus intended for cases where the prosecution case is contested. The full brief will contain material such as statements, recordings and photographs rather than a mere summary.[23]
[22]CPA s 29(2) [sic, scill s 39(2)].
[23]CPA s 41(1)(d).
An ex parte hearing based upon a preliminary brief
The Magistrates’ Court may hear a summary criminal matter ex parte if the accused does not attend in answer to a summons, bail, or a notice to appear.[24] The discretion to act upon the preliminary brief is enlivened only if the preliminary brief has been served on the accused.[25] Thus the jurisdiction exercised in this case is dependent upon the accused being on notice of the prosecution case, and failing to attend to contest that case.
[24]CPA ss 25(1)(b), 80(1)(c), 80(2)(a).
[25]CPA s 84(1)(b).
It is a further jurisdictional prerequisite before the Magistrates’ Court may proceed on the basis of a preliminary brief that “…the Magistrates’ Court considers that the matters set out in the preliminary brief disclose the offence charged…”[26] It is significant that the provision refers to “the matters set out in” the preliminary brief, rather than “the evidence contained in” the preliminary brief, thus recognizing that the preliminary brief does not contain evidence, but assertions of fact.
[26]CPA s 84(1)(c).
If the court determines that the matters set out in the preliminary brief do not disclose the offence charged, the court may require the informant to provide additional evidence.[27] That provision acknowledges that a preliminary brief will not necessarily cover all points of proof, and ensures that an informant may obtain additional evidence to make up any shortcomings identified by the Court.
[27]CPA s 84(2).
Thus, before proceeding pursuant to s 84(1), the Court must be satisfied that the case is made out. If not so satisfied, the Court may not immediately proceed upon the basis of the preliminary brief. It may instead adjourn proceedings and require pursuant to s 84(2) that additional evidence be provided.
The effect of the combination of those two provisions is that where a preliminary brief is deficient, the informant will have the opportunity to remedy that deficiency. The balance thus struck advances both justice and efficiency. The ex parte hearing based upon a preliminary brief ought not, in the interests of justice, result in acquittal where there is merely a technical deficiency in the preliminary brief. That pays proper deference to the role of the preliminary brief as an outline of the case against the accused, which is intended to be prepared within a tight timeframe, rather than to cover every point of proof.
The position is different in respect of a full brief, which is prepared when a contested hearing is in contemplation. Thus, the jurisdiction to proceed pursuant to s 83 with an ex parte hearing on the basis of a full brief is not limited to a case where the Court is satisfied that the brief discloses the offence. Nor, in such a case, is there power to require additional evidence.
Thus, the Act provides the Magistrates’ Court with a jurisdiction, in certain circumstances, to proceed on the basis of the preliminary brief if, but only if, it discloses the offence charged.
Applicability of the rules of evidence to an ex parte hearing based upon a preliminary brief
Consistent with the statutory framework described above (and further described below), s 84(1) specifically makes admissible the informant’s statement in the preliminary brief. The rule against hearsay is specifically abrogated as it will inevitably be infringed, and the Magistrates’ Court is granted a discretion to exclude inadmissible material (both hearsay and other material) from the preliminary brief. That it is a discretion is made clear by the use of the permissive word “may” in s 84(4):
“The Magistrates’ Court may rule as inadmissible the whole or any part of a preliminary brief, a statement or an exhibit.”
It is clear that the word “may” was used deliberately, as the Explanatory Memorandum described the power in s 84(4) as a “discretion” to rule inadmissible any material in the preliminary brief.[28] The rule in s 45 of the Interpretation of Legislation Act 1984 applies, so that the word “may” indicates a discretionary approach to the exclusion of material which would be excluded by the rules of evidence.
[28]Explanatory Memorandum, Criminal Procedure Bill 2008, 35.
The discretionary application of the broader rules of evidence is consistent with the general inapplicability of the hearsay rule, by virtue of s 84(1). Thus, given the preliminary brief will inevitably contain much hearsay, but less material which would be inadmissible for other reasons, the scheme of the [Act] provides for a blanket lifting of the hearsay rule, and then a discretionary approach to the rules of evidence more broadly.
The existence of a discretion to apply the rules of evidence in this context is consistent with the statutory context and purpose underlying the CPA. Three particular aspects of the statutory context are relied upon.
First, as submitted above, the nature of the preliminary brief is such that very little of it would be admissible under the ordinary rules of evidence. Thus, permitting a hearing to proceed on the basis of such a document necessarily requires a discretionary approach to the rules of evidence.
Secondly, two jurisdictional predicates for the matter to proceed ex parte on the basis of the preliminary brief are that the accused has not appeared to answer the charge, and the preliminary brief has been served upon the accused. Thus, the statutory context in which the hearing proceeds is that the Appellant is aware of the factual allegations, and has not attended court to answer that case. The simplification of the mode of proof in such circumstances is consistent with the statutory purpose to “…simplify… the laws relating to criminal procedure in the Magistrates’ Court…”[29]
[29]CPA s 1(a).
Thirdly, and importantly, the statutory context includes significant safeguards to protect an accused who is found guilty by way of the summary procedure provided for by an ex parte hearing on the basis of a preliminary brief in the Magistrates’ Court:
a.The informant is liable to the penalties of perjury for any false statement in a preliminary brief.[30]
b.Only relatively modest sentences may be imposed.[31]
c.A sentenced person will receive notice of the result of the hearing.[32]
d.The decision will be automatically set aside if the sentenced person applies within 28 days after receiving that notice, or in certain other circumstances.[33]
e.There is an additional broad discretion to set aside the decision and grant a rehearing in the Magistrates’ Court in other circumstances.[34]
f.There is a right to a hearing de novo in the County Court on appeal.[35]
Thus, the CPA provides a scheme that simplifies proof of the prosecution case, where an accused is aware of the case, but does not attend to answer the case, by making the contents of the preliminary brief prima facie admissible, but subject to an extensive regime of safeguards for an accused person who is the subject of such a hearing.
[30]CPA s 38,
[31]CPA s 87.
[32]CPA s 87(4).
[33]CPA s 94.
[34]CPA s 92.
[35]CPA ss 254, 256(1).
The written submissions of Mr Carr in the earlier case concluded, as to this particular aspect, by contending that, because the Magistrates’ Court had a discretion as to the application of the rules of evidence, then, even if the radar reading was strictly inadmissible according to those rules, the Magistrates’ Court was entitled to take it into account in finding the appellant guilty. It was submitted that that evidence sufficed to establish the appellant’s guilt in each case, and that there was accordingly no error in the decision below in either case.
Though conceding that Mr Carr’s submissions were not accepted in McWhirter, counsel for the present respondent urges me to treat those submissions as good. Counsel emphasises, in particular, the submission that it is the ‘elements’ of the offence that must be ‘disclosed’ in a preliminary brief. Counsel reiterates the submission that it is not the legislative intention that the prosecution would have to provide the evidence in an admissible form. According to counsel, the primary document in a preliminary brief is the informant’s statement, being ‘a statement of the alleged facts on which the charge is based, including reference to the material available to the prosecution to support the alleged facts’. It is the clear intention of these provisions, counsel for the respondent submits, that, should the accused fail to appear, the Magistrate can act on the ‘alleged facts’ rather than on specific evidence of those facts (noting that the preliminary brief only required a ‘reference’ to the material available to support the alleged facts).
The respondent proceeds to submit that if it were necessary to include all of the informant’s evidence in the preliminary brief and for that evidence to be sufficient to satisfy the court on each element of the offence, the purpose of the preliminary brief system, and specifically of s 84, would be defeated. According to the respondent, the key provision of s 84 is to allow the informant’s statement – and the alleged facts it contains – to be used as evidence.[36] The respondent submits that whilst this is ‘a significant departure from the common law’, it is within the power of the legislature to so act. The respondent refers to and repeats the list of protections or safeguards for an accused who is dealt with in his or her absence under the CPA, as contained in Mr Carr’s written submissions (see above).
[36]CPA s 84(1).
As indicated above, the respondent concedes that the submissions made by Mr Carr in McWhirter were not accepted by John Dixon J. He concedes also that his Honour’s decision was not appealed by the respondents in that case (who were represented by the Director of Public Prosecutions). The respondent acknowledges that whilst the Court is not bound by a decision of another single judge of the Court, it would ordinarily follow such a decision unless of the view that the decision was ‘plainly wrong’.[37] However, the respondent submits that the decision in McWhirter was plainly wrong. Presumably that submission extends to the other abovementioned decisions of single Judges of this Court where the same approach was taken (albeit without argument to the contrary), namely Challis v Williams,[38] Rodger v Wojcik[39] and Banks v Bice.[40]
[37]Citing LaMacchia v Minister for Primary Industries and Energy (1992) 110 ALR 201, 204; Shaw v Yaranova Pty Ltd [2006] VSC 45, [66]-[69]; Clarke (as trustee of the Clarke family trust) v Great Southern Finance Pty Ltd (receivers and managers appointed) (in liq) [2014] VSC 516, [604]; Metropolitan Fire Emergencies Board v Yarra City Council (2015) LGERA 1, 44 [149].
[38][2013] VSC 490.
[39][2014] VSC 308.
[40][2014] VSC 610.
Mr Kinnersly’s written submissions on the CPA
The appellant, Mr Kinnersly, duly filed and served written submissions in response to those of the respondent. So far as relevant to the present point, the appellant’s post-hearing written submissions[41] are along the following lines.
[41]Appellant’s further outline of submissions dated 26 April 2018.
In the first place, the appellant emphasises the first sentence of the passage from the judgment of Gillard J in Hannon v Norman[42] which the appellant quoted in his original written submissions and which is set out above, to wit:
The fact that the defendant did not appear does not entitle the prosecution to obtain a conviction without proper proof of the elements of the charge.
[42][2006] VSC 228.
Further, the appellant expands his prior quotation from Hannon v Norman by adding the next two sentences from the judgment of Gillard J, as follows:
Although the Magistrate directed that the matter could proceed ex parte, at the request of the prosecutor and presumably pursuant s 41(2)(b), the procedure laid down by clause 5 of schedule 2 was ignored. Further, despite the direction, the prosecutor called oral evidence relating to the charge.
Counsel for the appellant does not seem to make any point about those two added sentences. In fact, they are against him, as I will indicate in due course. In any event, immediately after the quotation, the appellant submits that the language used in sch 2 cl 6[43] of the MCA is not significantly different from the language used in s 84(1) of the CPA. The appellant goes on to say that the old provision (meaning, I think, sch 2 cl 6) and the new provision both allow the court to rely on statements despite the rule against hearsay. The appellant submits that the rule against hearsay, if it applied, would have prevented the Magistrates’ Court from accepting evidence by statement or exhibits without the witness attending court to give viva voce evidence. According to the appellant, the need for such an attendance is removed by the use of the words ‘despite the rule against hearsay’. The use of those words makes the evidence admissible from the bar table by the tendering of ‘the brief of evidence’[44] in the absence of any witness. However, the appellant submits, the ‘brief of evidence’ itself must still contain sufficient evidence to prove the case beyond reasonable doubt. The appellant submits that the words ‘despite the rule against hearsay’ do not water down the need for the prosecution statement to contain evidence of the facts that are being alleged against the accused to prove the offence.
[43]Initially I gained the impression that this might have been a typographical error, and that a reference to sch 2 cl 5 (as mentioned by Gillard J), rather than sch 2 cl 6, was intended. On closer examination I gather that there was no such typographical error.
[44]Under ss 37 and 84 of the CPA, the correct description is ‘preliminary brief’, rather than ‘brief of evidence’.
The appellant submits that what he calls the ‘principle set out in Hannon v Norman’ has been followed in several subsequent decisions of this Court. He appears to be referring to the abovementioned cases of Challis v Williams,[45] Rodger v Wojcik[46] and Banks v Bice.[47] He submits that those cases all support the notion that the abrogation of the hearsay rule in s 84 of the CPA ‘does not permit the prosecution to prove its case without alleging the relevant facts’.[48]
[45][2013] VSC 490.
[46][2014] VSC 308.
[47][2014] VSC 610.
[48]Appellant’s further outline of submissions dated 26 April 2018, [4].
Next, the appellant says:
Dixon J considered this issue in when [sic] deciding McWhirter v Dunlop; Tran v Harris at [35]:
The respondents contended that I should not apply the observations of Gillard J in Hannon v Norman, set out above. They contended that those observations, because they were made in a different statutory context, are not helpful. I disagree. It is true that the appeal concerned an offence against s 49(1)(f) of the Road Safety Act 1986 (driving while intoxicated), involving an informant who gave oral evidence to the court which was proceeding ex parte, and in which the brief of evidence had been served under the provisions of the Magistrates Court Act 1989. Those provisions were repealed by the Criminal Procedure Act. Gillard J sets out at length the statutory scheme applicable. There is no material distinction to be drawn between that statutory scheme and the Criminal Procedure Act that renders inapplicable the general proposition identified by Gillard J. With respect, I agree with his Honour’s statement. In my view it has present application.
[emphasis added][49]
[49]By counsel for the appellant.
In DPP Reference No 1 of 2017 [2018] VSCA 69 the majority of the Court of Appeal held that the Criminal Procedure Act 2009 has not codified the common law so as to exclude the practice of giving Prasad directions. Significantly, at [205] the majority stated:
Reading the relevant provisions in the order in which they are set out in the CPA, one sees that a preliminary brief, as the name implies, is a preliminary document or set of documents. It is to be served on the accused, if at all, at a significantly earlier stage than the stage at which a ‘full brief’ is to be , or may be, served. Moreover, a preliminary brief is not required to be anything like as ample as a full brief. Critically, a preliminary brief is not required to contain any statement of any witness. Rather, by virtue of s 37(1)(c), it is to contain ‘a statement made by the informant personally that complies with subsection (2) and section 38’. The informant himself or herself will not necessarily be a witness in a summary prosecution. Accordingly, the CPA does not proceed on the basis that the informant’s statement under s 37(1)(c) is a witness statement. Rather, pursuant to s 37(2)(a), as already mentioned, the statement is to be a complete and accurate statement of the material available to the prosecution at the time the statement is sworn (etc), and must include, relevantly, a statement of the alleged facts on which the charge is based, including reference to the material available to the prosecution to support the alleged facts. By contrast, under s 41(1)(d)(iv), a full brief must contain ‘a list of the persons the prosecution intends to call as witnesses at the hearing, together with a copy of each of the statements made by those persons’ (my emphasis).
It is true that, under s 37(3), a preliminary brief may contain material additional to the material required to be included under s 37(2), and that the note to s 37(3) gives, as an example, statements of key witnesses. However, this mainly serves to confirm that no witness statement at all is required to be included in a preliminary brief. In many other ways, too, the material in a full brief is required to be more comprehensive than the material in a preliminary brief (compare s 41 with s 37).
The informant’s statement in a preliminary brief is required to be sworn or otherwise duly attested: s 38. However, as the respondent submits, this requirement is a safeguard or protection for the accused. It does not transform the statement into a witness statement.
There will be many cases in which, even without having to comply with the rule against hearsay, the prosecution could not fully prove a charge for a summary offence[72] without at least one, and sometimes many more, witness statements. However, s 84 makes no express provision for the admission into evidence of witness statements – only for the admission of the informant’s statement (a special statutory creature) and of any exhibit referred to in the informant’s statement. Section 37 treats exhibits as being separate from witness statements. Parliament’s contemplation that a preliminary brief will not normally contain witness statements is a strong indication (among other strong indications) that Parliament should not be taken to have intended that a charge may only be proved under s 84 by means of conventionally admissible evidence.
[72]Sections 80 and 84 only apply to summary offences, as distinct from indictable offences triable summarily.
Rather, if the conditions set out in s 84(1)(a), (b) and (c) are met, s 84(1) authorises the Magistrates’ Court (acting reasonably, and after considering whether to exercise its discretion to rule as inadmissible any part of the preliminary brief) to treat the informant’s statement, together with any exhibit referred to in the informant’s statement, as establishing the charge against the accused. The process is summed up in the language of s 87(2). That provision applies ‘[i]f the Magistrates’ Court finds an accused guilty in the absence of the accused on the basis of the preliminary brief’ (my emphasis).
As the respondent submits, s 84(4) plainly gives the Magistrates’ Court a discretion whether or not to rule as ‘inadmissible’ the whole or any part of a preliminary brief, a statement or an exhibit.[73] In courts generally, in most circumstances, the application of the rules of evidence is not a matter of discretion. The quite unusual nature of s 84(4) shows that the concept of admissibility in s 84 is not the same as the concept of admissibility in the ordinary law of evidence. Rather, s 84 is dealing with what the Magistrates’ Court may or may not take into account in a more general sense.
[73]Another unusual discretion – whether or not to require the informant to provide additional evidence – is conferred by s 84(2).
Section 8 of the Evidence Act 2008 (Vic) (‘EA’) recognises that statutory provisions like s 84 may exist or may come into existence. It provides that the EA does not affect the operation of the provisions of any other Act. This means, for the present case, that the provisions of s 84 of the CPA prevail over the provisions of the EA.[74]
[74]DPP (Vic) v Gibson (2012) 61 MVR 261, 267-268 [24]-[31] (Emerton J, as her Honour then was); Stephen Odgers, Uniform Evidence Law (Thomson Reuters, 13th ed, 2018) 67-68 [EA.8.90].
As the respondent submits, further support for the conclusion he seeks on the main issue is provided by the major contrast between, on the one hand, the ‘full brief’ scheme under ss 39 to 41 and s 83 of the CPA and, on the other, the ‘preliminary brief’ scheme under ss 37, 38 and 84 thereof. The relative strictness of the ‘full brief’ scheme can also be seen in s 47 of the CPA, which, in effect, requires that any statement referred to in s 41 that the informant intends to tender at the hearing of the charge if the accused does not appear must be in the form of an affidavit or otherwise attested to in accordance with s 47.
That there are major differences with respect to form and content requirements as between a full brief and a preliminary brief has already been mentioned, and the differences are readily apparent on a quick reading of the relevant provisions of the CPA. In addition, as the respondent submits, there are significant differences between the provisions of ss 83 and 84, respectively. Without necessarily being exhaustive, six such differences may be identified:
(i) The condition in s 84(1)(b) relating to service of the preliminary brief on the accused 14 days prior to the hearing has no equivalent in s 83.
(ii) Likewise, the condition in s 84(1)(c) that the Magistrates’ Court consider that the matters set out in the preliminary brief disclose the offence charged has no counterpart in s 83.
(iii) Section 83 makes certain specified documents admissible ‘as if their contents were a record of evidence given orally’, whereas the corresponding expression in s 84 is ‘despite the rule against hearsay’.
(iv)Section 83(1)(d), insofar as it uses the expression ‘which are admissible’, seems to provide that the documents to which it refers will only be able to be taken into account if they are otherwise admissible, whereas there is no equivalent in s 84.
(v) Section 83(1)(c) and (d) deal with a potentially much broader range of documents (eg ‘any statement a copy of which has been served in the full brief’) than is dealt with in the corresponding provisions of s 84, namely s 84(1)(d) and (e) (which are restricted to the informant’s statement and any exhibits thereto).
(vi)Section 83 contains no counterpart to s 84(2), which confers on the Magistrates’ Court the quite unusual function and power of requiring the informant to provide additional evidence if the Court considers that the matters set out in the preliminary brief do not disclose the offence charged.
The appellant’s submissions necessarily involve the implicit contention that, despite these distinctions between the terms of s 83 and s 84, and despite all of the abovementioned distinctions between the ‘preliminary brief’ provisions and ‘full brief’ provisions themselves, exactly the same requirement (for sufficient strictly admissible evidence) applies under both s 83 and s 84. That implicit contention is at odds with the presumption usually applied in the interpretation of written instruments generally (including statutes), that where the author uses different words within the same instrument the author should be taken to intend to signify different things.[75]
[75]See Prestcold (Central) Ltd v Minister for Labour [1969] 1 WLR 89, 97; [1969] 1 All ER 69, 75 (UK Court of Appeal, Lord Diplock) cited in Eureka Funds Management Ltd v Freehills Services Pty Ltd (2008) 19 VR 676, 691-692 [52] and see also the other cases there cited.
I would observe in passing that, in my view, the provisions of s 84(1)(c) of the CPA and the related provisions of s 84(2) should be understood as conferring on the Magistrates’ Court the function of considering and determining whether, if the allegations of fact discernible in the preliminary brief (especially those in the informant’s statement) were accepted, the facts so alleged would amount to the commission of the summary offence charged. This is frequently the sense in which the expression ‘disclose the offence charged’ is used.[76] There is an analogy with the concept of demurrer.[77] So, s 84 of the CPA involves, among other things, two main related steps: first, consider whether the facts alleged would constitute the offence charged; and, second, if so, consider whether to accept the allegations of fact.
[76]See, eg, R v Brown [1924] VLR 491, 494; R v Way [1947] NZLR 514, 515, 517; Kirkwood v G J Coles and Co (Pty) Ltd [1968] VR 518, 521; R v Loewenthal; ex parte Blacklock (1974) 131 CLR 338, 338, 341, 343.
[77]R v Loewenthal; ex parte Blacklock (1974) 131 CLR 338, 338, 341, 343.
The respondent was prepared to say that his construction of the CPA involved a ‘significant departure from the common law’. However, the common law does countenance some ex parte proceedings.[78] Moreover, both in Victoria and elsewhere there are numerous precedents for statutory schemes under which criminal guilt may be established without a plea of guilty and without strictly admissible evidence.[79] Victorian statutes have done so since the 1960s or earlier.[80] There have long been ‘alternative procedure’ provisions in South Australia[81] and the Northern Territory,[82] at least. Averment provisions also have a long history in Australia.[83]
[78]See Taupati v The Queen [2017] VSCA 106; Tasmania v Davidson [2018] TASSC 13.
[79]In Victoria, ‘on the spot’ fines were introduced by statute over 50 years ago. For many years, there has been a developed system of infringement notices, especially for road safety offences. See the Infringements Act 2006 and the references to that Act in s 85 of the CPA.
[80]See Anstis v Thomas [1969] VR 836 (but note the requirement at that time for ‘a sworn statement of the informant and, where necessary, sworn statements of other witnesses shortly describing the facts of the alleged infringements). See also the Parliamentary Debates on the Justices (Alternative Procedure) Bill 1970: Victoria, Parliamentary Debates, Legislative Assembly, 17 February 1970, 2697-2700 (Mr Reid, Attorney-General; Mr Ross-Edwards, Member for Shepparton); Victoria, Parliamentary Debates, Legislative Assembly, 12 March 1970, 3279-3288 (Mr Reid, Attorney-General; Mr Turnbull, Member for Brunswick West; Mr Ross-Edwards, Member for Shepparton; Mr Wilkes, Member for Northcote; Mr Holding, Leader of the Opposition; Mr Lovegrove, Member for Sunshine); Victoria, Parliamentary Debates, Legislative Assembly, 18 March 1970, 3528-3531 (Mr Reid, Attorney-General; Mr Ross-Edwards, Member for Shepparton; Mr Turnbull, Member for Brunswick West); Victoria, Parliamentary Debates, Legislative Council, 19 March 1970, 3568-3570 (Mr Hamer, Minister for Local Government); Victoria, Parliamentary Debates, Legislative Council, 25 March 1970, 3946-3951 (Mr Hamer, Minister for Local Government; Mr Todd, Member for Melbourne West Province; Mr Clarke, Member for Northern Province).
[81]See Walker v Eves (1976) 13 SASR 249, 254-256; Kyriacou v Police [2007] SASC 341, [71]-[49] (Gray J); Hillman v Giralano [2012] SAIRC 48, [8]. Note the emphasis in the South Australian cases on the existence of the court’s discretion and the importance of its proper exercise.
[82]See Jenkins v Wittington [2017] NTSC 65, [93].
[83]See Chief Executive Officer of Customs v El Hajje (2005) 224 CLR 159.
I turn to the remaining points advanced by the appellant on the main issue.
There is nothing in DPP Reference No 1 of 2017[84] (which related to whether a Prasad direction may still be given after the introduction of the CPA) that bears even remotely on the present issue. It certainly does not support the proposition that the observations made by Gillard J in Hannon v Norman[85] on which the appellant relies are applicable to cases under ss 37 and 84 of the CPA. That proposition is rejected, for the for the reasons stated above. Nor does it matter that Hannon v Norman may have been known to Parliament at the time of the passing of the CPA.
[84][2018] VSCA 69.
[85][2006] VSC 228, [21].
The appellant misframes the issues by assuming that the arguments against him depend upon or involve giving a very broad interpretation (or any particular interpretation) to the words ‘the rule against hearsay’ in s 84. That is not what the respondent submitted, nor is it any part of my reasoning. The present issue falls to be resolved by construing s 84 as a whole and in its relevant context.
In paragraph 11 of his post-hearing submissions, the appellant makes a passing reference to s 24 of the Charter of Human Rights and Responsibilities Act 2006 (‘the Charter’). He says that s 24 was passed after Hannon v Norman. That is plainly irrelevant. He says that s 24 ‘requires a fair hearing, which incorporates the principle that the charge is required to be proved beyond reasonable doubt’. The appellant advances no argument in support of that proposition. He cites no supporting authority. He does not explain how the acceptance of the proposition might advance his position on the present issue. He has apparently given no notice to the Attorney-General or the Victorian Human Rights and Equal Opportunities Commission under s 35 of the Charter. Nor, apparently, has the respondent. In all of the circumstances, I do not accept that it is appropriate to give any further consideration to paragraph 11 of the appellant’s post-hearing submissions.
The balance of the appellant’s submissions on the present issue are mainly in the nature of ‘bootstraps’ argument. They assume their own correctness, i.e. they assume that, even in a case governed by s 84 of the CPA, the charge for the summary offence must be fully established by strictly admissible evidence in the ordinary way. Such arguments are not helpful.
Finally, I note that the appellant refers to the explanatory memorandum to the CPA. He does not accurately quote the passage to which he refers. Read in its full context, that passage does not assist the appellant. So read, it is seen to be consistent, as one would expect, with the actual words of the clause to which it was referring (now s 37 of the CPA). In particular, it is seen to do no more than to say that, under what is now s 37(2), the informant’s statement must be a complete and accurate statement of the material available to the prosecution at the time the statement is sworn etc.
For all of the reasons set out above, I would construe the CPA in the way now proposed by the respondent.
There is no suggestion that, even on that construction of the CPA, the Magistrate erred in law in making his decision. It is not suggested that he failed to consider properly the exercise of any of his discretions under s 84.
Accordingly, the appeal must be dismissed.
Nonetheless, in case I be wrong in my construction of the CPA, and in deference to the arguments advanced by the parties before the main issue emerged, I will deal with those arguments also.
In order to do so, it is necessary to begin with more detail about the case as it was originally framed.
The proceedings in the Magistrates’ Court, the stated question of law and the grounds of appeal
The two summary traffic charges against Mr Kinnersly were heard on 8 May 2017 by a Magistrate sitting at Ballarat. Charge 1 was that on 23 December 2016 Mr Kinnersly, being the driver of a vehicle on a length of road, drove over the applicable speed limit, contrary to r 20 of the Road Safety Road Rules 2009 (‘the Rules’) (alleged speed 149 kph in a 100 kph zone). Charge 2 was that, on the same day, Mr Kinnersly failed to drive to the left of two parallel continuous lines, contrary to r 132(2) of the Rules. The Magistrates’ Court imposed an aggregate fine of $800, and on charge 1 suspended all driving licences issued to Mr Kinnersly under the RSA for a period of 12 months from 8 May 2017.
As mentioned above, Mr Kinnersly’s appeal to this Court is brought under s 272 of the CPA, which provides for an appeal on a question of law only. According to his notice of appeal, Mr Kinnersly’s appeal is brought ‘against the whole of the order made in respect of charge 1’. There is no appeal against the conviction on charge 2. On 20 June 2017 this Court constituted by the Honourable Justice Ginnane stayed the orders made by the Magistrates’ Court pending the hearing and determination of this appeal.
The proceedings in the Magistrates’ Court were commenced by way of charge-sheet and summons under pt 2.3 of the CPA.
The charges were dealt with by the Magistrate in open court. However, as already mentioned, they were dealt with in the absence of the appellant or any representative of the appellant. The appellant does not allege that he was not duly served with the charge-sheet and summons. Nor does he allege that he was not given due notice of the hearing before the Magistrate or that he was otherwise denied a proper opportunity to contest the charges.[86]
[86]Indeed, one might possibly infer from Mr Kinnersly’s affidavit in this appeal and from all of the relevant circumstances that Mr Kinnersly deliberately omitted to attend or appear at the Magistrates’ Court hearing (perhaps on legal advice). However, I need not and do not reach any concluded view in that regard.
However, in his notice of appeal, the appellant raises, as the stated question of law on which the appeal is brought, the following question:
Was there sufficient admissible evidence before the Magistrate to support a finding that the Appellant’s motor vehicle was detected travelling at a speed in excess of the speed limit?
There are a number of difficulties with this formulation of the question of law.
In the first place, it carries a risk of distraction from what would have been the proper approach to the case as the case was originally conceived. It assumes that the decision of the Magistrate was entirely based on a ‘finding’ that the appellant’s motor vehicle was ‘detected’ travelling at a speed in excess of the speed limit. That assumption suited the appellant’s arguments. His attack on the speeding conviction was exclusively directed to alleged deficits in the Police ‘evidence’ relating to the use of a speed detector device. It is true that the charge-sheet contained a reference to a ‘detected’ speed of 151 kph and an ‘alleged’ speed of 149 kph. A difference of 2 kph between ‘detected’ and ‘alleged’ speeds is common in speeding cases involving speed detectors.[87] It is also true that the preliminary brief contained other references to a speed detector. However, the preliminary brief also contained material that was not tied to any speed detector and that might be thought to have supported the conviction on the speeding charge, at least to an extent. That material included Police estimates of the appellant’s speed at particular stages of his alleged driving. (I will return to the detail of this material in due course.) The transcript of the very brief hearing does not reveal any express finding by the Magistrate that the relevant speeding (much less all of the relevant speeding) was ‘detected’ by a speed detector or other speed measuring device. Indeed, as soon as he was told that the Police prosecutor was relying on the preliminary brief, the Magistrate merely said:
In his absence the accused is convicted and fined $800. On the speed charge, any licence or permits held under the Road Safety Act are suspended for 12 months.
On the other hand, the order of the Magistrates’ Court as set out in the Register refers to a speed of 149 kph, which accords with the figure alleged in the charge-sheet and which is, of course, a precise figure. In all the circumstances, I would have assumed in the appellant’s favour that the implicit findings of the Magistrate included a finding that the appellant’s vehicle was detected, by a speed detector, travelling at a speed in excess of the speed limit. However, I bear in mind that ‘detection’ is not an element of the offence. The offence is one of driving in excess of the speed limit, not of being ‘detected’ doing so.
[87]This may well be attributable to reg 42 of the Road Safety (General) Regulations 2009, which refers to a limit of error of 2 kph in relation to the testing of a speed detector for the purposes of s 79 of the RSA (see below).
Even on the assumption (favourable to the appellant) made in the previous paragraph, it is arguable that the question stated in the notice of appeal is not a question of law within the meaning of and for the purposes of s 272 of the CPA. Speaking generally, to ask whether there was ‘sufficient’ admissible evidence to support a finding (or conviction) will be, at least in some cases, to raise a question of fact rather than a question of law.[88] However, no such point was taken by the respondent. The respondent very fairly proceeded on the basis that the stated question of law should be understood to raise either the issue whether there was any admissible evidence before the Magistrate to support the finding of guilt on the speeding charge or the issue whether it was open to the Magistrate, on the material before him, to convict Mr Kinnersly on charge 1. An issue expressed in either of those ways does amount to a question of law.[89] Hence I will proceed (for present purposes) on the basis that the jurisdiction of this Court under s 272 of the CPA was duly enlivened by the raising of a question of law. (Of course, as already indicated, I consider that the whole of the appellant’s original case was based on a misconception of the relevant law.)
[88]S v Crimes Compensation Tribunal [1998] 1 VR 83; Berlyn v Brouskos (2002) 134 A Crim R 111, 118-119 [30] (Nettle J); Rugolino v Howard [2010] VSC 490, [8]-[20] (Bell J); DPP v Burns (2017) 81 MVR 399, 405-406 [13]-[23] (Riordan J); Watson v DPP (2017) 83 MVR 98, 111-113 [49]-[56] (Mukhtar AsJ) (and cases there cited).
[89]See previous footnote.
In the notice of appeal, the matters relied upon under the heading ‘Grounds of Appeal’ are concisely stated, as follows:
1.The charge was heard on 8 May 2017 at an ex parte hearing and the evidence before the court was by way of Preliminary Brief pursuant to s.84 Criminal Procedure Act 2009.
2.The preliminary brief filed in the proceeding contained a statement which states Police used a Stalker Dual Radar speed detector (“the radar”) to measure the speed of the Appellant’s motor vehicle on the date of the alleged offence.
3.The Magistrate found the charge proved even though the Brief of Evidence did not contain any admissible evidence that the Appellant exceeded the speed limit, and in particular did not contain any evidence that the Respondent:
(a)used a speed measuring device prescribed under r.41 Road Safety (General) Regulations 2009 (“the Regulations”); nor
(b)used a speed measuring device in the manner prescribed by s.79 Road Safety Act 1986 and r.46 of the Regulations.
As clarified in his written submissions,[90] the appellant makes, in effect, two complaints about what happened in the Magistrates’ Court.
[90]Appellant’s outline of submissions dated 26 October 2017.
First, as pleaded in paragraphs 2 and 3(a) of the ‘Grounds of Appeal’, the appellant asserts that in the informant’s statement that was before the Magistrates’ Court it was stated that the police used an instrument called a ‘Stalker Dual Radar’. The appellant asserts that such an instrument is not a prescribed device under reg 41 of the Road Safety (General) Regulations 2009 (‘RS(G) Regulations’). Although acknowledging that the material before the Magistrates’ Court included a statement that the device used was a ‘prescribed’ device, the appellant contends that the ‘specific identification’ of the type of device used on this occasion (namely, a ‘Stalker Dual Radar’ device) contradicts the statement that the device used was a prescribed device. Consequently, the appellant contends, the evidence before the Magistrates’ Court was not capable of satisfying the Magistrate beyond reasonable doubt that the police used a device prescribed by reg 41.[91]
[91]Ibid [6].
Second, as pleaded in paragraph 3(b) of the ‘Grounds of Appeal’, the appellant complains about an alleged deficiency in the ‘evidence’ relating to the manner of use of the device, as distinct from the identification of the device. In his written submissions, he refers in particular to four conditions in reg 46 of the RS(G) Regulations which are required to be satisfied if the radar device is to be ‘used in the prescribed manner’ for the purposes of s 79 of the RSA. He asserts that there was no admissible evidence in the preliminary brief (which was the only material before the Magistrates’ Court) to show that the manner of use of the radar device complied with any of those four conditions.
The appellant’s first complaint
There is little or no merit in the appellant’s first complaint, on any view.
The first complaint assumes (as does the second complaint) that in this case the Police needed to rely on the evidentiary provisions contained in s 79 of the RSA. I will return to that assumption in due course. Section 79 reads:
79 Evidence of speed
(1)If in any criminal proceedings the speed at which a motor vehicle or trailer travelled on any occasion is relevant, evidence of the speed of the motor vehicle or trailer as indicated or determined on that occasion by a prescribed road safety camera or prescribed speed detector when tested, sealed and used in the prescribed manner is, without prejudice to any other mode of proof and in the absence of evidence to the contrary, proof of the speed of the motor vehicle or trailer on that occasion.
...
The appellant’s first complaint focuses on the expression ‘prescribed speed detector’ in s 79. The expression is defined in s 3(1) of the RSA as follows:
prescribed speed detector means a type or class of speed detector that is prescribed by regulations for the purposes of this Act
The applicable regulations are the RS(G) Regulations. So far as relevant to radar devices, reg 41 of the RS(G) Regulations provides:
41 Prescribed speed detectors
For the purposes of the definition of prescribed speed detector in section 3(1) of the Act, the following speed detectors are prescribed—
...
(c)the following radar devices—
(i)the HR4;
(ii)the Falcon (also known as the FALCON);
(iii)the KR-10SP;
(iv)the Silver Eagle (also known as the SILVER EAGLE);
(v)the Silver Eagle II (also known as the SILVER EAGLE II);
(vi)the Stalker Dual DSR (also known as the STALKER DUAL DSR);
(vii)the Directional Golden Eagle II (also known as the DIRECTIONAL GOLDEN EAGLE II);
(viii)the Falcon HR;
(ix)the Raptor RP-1;
(x)the Directional Talon (also known as the DIRECTIONAL TALON);
(xi)the Stalker II SDR (also known as the STALKER II SDR).
The appellant acknowledges that in this case, by virtue of s 84(1) of the CPA, the informant’s statement in the preliminary brief, and the exhibits referred to in that statement, were admissible in evidence despite the rule against hearsay. The informant’s statement included the following passage:
Police in an unmarked vehicle and using a Prescribed speed detector bearing police identification Stalker Dual Radar MR794S which was tested sealed and certified on the 8th of April 2016. Police Detected the accused speed at 151 Kph ...
Moreover, the exhibits to the informant’s statement included a certificate under s 83 of the RSA dated 8 April 2016 which included the following sentence:
The speed detector Stalker Dual DSR (No. MR794S) was tested in accordance with the Road Safety (General) Regulations 2009 on 08 April, 2016.
Reading the informant’s statement and the exhibited s 83 certificate together, it is crystal clear that the particular device used (being No. MR794S) was asserted by the informant to be a ‘Stalker Dual DSR’. That is an expression that appears in reg 41(c)(vi) of the RS(G) Regulations. In other words, a ‘Stalker Dual DSR’ is a prescribed speed detector within the meaning of s 79 of the RSA. Therefore, contrary to the appellant’s argument, there was no ‘specific identification’ by the informant of a device other than a prescribed device. There was no self-contradiction by the informant. Nor was there any other contradiction of the informant’s statement that the device used was a prescribed device. The evidence before the Magistrates’ Court was amply capable of satisfying the Magistrate, beyond reasonable doubt, that the device used was a device prescribed by reg 41. Thus, in relation to the appellant’s first complaint, it is not necessary to consider whether, even if the strict rules of evidence were applicable, the ‘beyond reasonable doubt’ standard was or was not also applicable in relation to the question whether the device used was a prescribed device. I will say a little more about that point when I come to the appellant’s second complaint.
Even if the main issue had been determined in the appellant’s favour, his first complaint would have failed on the facts.
The appellant’s second complaint
To recap, the appellant’s second complaint was to the effect that there was insufficient admissible evidence before the Magistrate to show that the speed detector was ‘used in the prescribed manner’ for the purposes of s 79 of the RSA. In particular, the appellant said that there was no admissible evidence of compliance with four of the conditions set out in reg 46 of the RS(G) Regulations. He submitted that this was fatal to the prosecution.
Regulation 46 reads:
46 Use of radar devices
A radar device is used in the prescribed manner for the purposes of section 79 of the Act if—
(a)whenever the operator connects the radar device to a source of electricity, the operator ensures that—
(i)in the case of the Falcon HR and the Raptor RP-1, all of the elements of the digital speed display are illuminated; and
(ii)in the case of all other radar devices, a reading of (888) is displayed on the digital target speed display; and
(b)the doppler audio signal of the radar device is set at a level clearly audible to the operator who may take a reading if the signal indicates normal operation; and
(c)in the case of the HR4, the Falcon, the Falcon HR, the Directional Talon and the Stalker II SDR, the operator activates the device with the device aimed in the direction of a motor vehicle within the operator's field of vision and observes the reading displayed on the digital target speed display; and
(d)in the case of the KR 10SP, the Silver Eagle, the Silver Eagle II, the Stalker Dual DSR, the Directional Golden Eagle II, and the Raptor RP-1, the operator activates the device with the antenna set in the direction of a motor vehicle within the operator's field of vision and observes the reading displayed on the digital target speed display; and
(e)the device has been tested in accordance with regulation 42 within 12 months before the occasion of its use; and
(f)the device has been sealed in accordance with regulation 43 at the time that it was last tested.
It may be accepted that there was no explicit statement in the preliminary brief, or otherwise before the Magistrate, to the effect:
(a) that the operator connected the device to a source of electricity (reg 46(a)); or
(b) that a reading of 888 was displayed on the digital target display (reg 46(a)(ii)); or
(c) that the doppler audio reading was set at a level clearly audible to the operator (reg 46(b)); or
(d) that the operator activated the device with the antenna set in the direction of a motor vehicle within the operator’s field of vision (reg 46(d).
The respondent contends that, even without explicit statements of those kinds, and even on the appellant’s construction of the relevant provisions of the CPA, that is to say, even if it had been necessary for the Magistrate to be satisfied by admissible evidence and beyond reasonable doubt that the speeding charge had been proven, it was open to the Magistrate, on the material in the preliminary brief, to be so satisfied.
The respondent conceded that the preliminary brief did not contain a direct statement that the machine was used in the prescribed manner. He conceded also that there was no direct statement —
(a) that the operator connected the device to a source of electricity; or
(b) that a reading of 888 was displayed; or
(c) that the doppler audio was clearly audible to the operator; or
(d) that the operator activated the device with the antenna set in the direction of a motor vehicle within the operator’s field of vision.
The respondent submitted that the Magistrate would not have been obliged to apply the ‘beyond reasonable doubt’ standard in determining whether the radar device was used in the prescribed manner for the purposes of s 79 of the RSA. According to the respondent, it is not an element of the offence of speeding that the police comply with s 79 of the RSA. The respondent is plainly correct to that extent. However, I need not and will not express a concluded view as to whether, in this case, the radar evidence could have been made admissible if the Magistrate had been satisfied on the balance of probabilities (as distinct from beyond reasonable doubt) that each prescribed requirement had been met.[92] In this case, it is doubtful whether the ‘evidence’ would be capable of satisfying even the balance of probabilities test on each of the four prescribed requirements as to the manner of use of the device.
[92]But see McWhirter v Dunlop [2013] VSC 697, [41] (John Dixon J); Rodger v Wojcik [2014] VSC 308, [28] (Croucher J); Banks v Bice [2014] VSC 610, [13] (Kaye J); Elezovic v Williams [2016] VSC 763, [17] (Keogh J). As to the common law on evidentiary facts in criminal cases generally, as it was in Victoria prior to the introduction of ss 61 and 62 of the Jury Directions Act 2015, see R v Dickson [1983] 1 VR 227, 235; Shepherd v R (1990) 170 CLR 573; Rugolino v Howard [2010] VSC 590, [14] (Bell J). Sections 61 and 62 of the Jury Directions Act 2015 replaced, or largely replaced, the common law in this regard from 2015 in relation to jury trials (see R v Bauer [2018] HCA 40, [80]; cf DPP v Aisling (Ruling No 8) [2017] VSC 84 (Kaye J)). However, those sections were only made applicable to summary offence hearings from October 2017, after Mr Kinnersly’s case was heard in the Magistrates’ Court: see s 4A of the Jury Directions Act 2015.
On the strict approach taken in the abovementioned speeding cases on which the appellant relied, these defects would have prevented the informant relying on evidence from the speed detector, notwithstanding that it was clear from the material in the preliminary brief that the device had been tested and sealed in the prescribed manner and that the machine had been used by a trained operator. The preliminary brief also indicated that the speed detection was to be corroborated by two further Police officers. Once again, on the strict approach taken in the cases, this would not have saved the day. If not for forming the strong and clear view I have formed on the main (legal) issue, as expressed above, I would have considered it appropriate to take the same strict approach to these factual matters. Hence, I would have agreed with the appellant that the speed detector reading could not be relied on.
On the other hand, it was not seriously argued by the appellant that there was no other sufficient ‘evidence’ before the Magistrates’ Court to support a general finding on the speeding charge. There was substantial evidence in the preliminary brief of estimates of excess speed made by experienced traffic Police who were following the appellant’s car.[93] On the other hand, those estimates did not include an estimate that the appellant was traveling at 151 (or 149) km/h. The evidence relating to that level of speeding was tied exclusively to the radar device, on my reading of the material. However, I would have ruled that it would have been open to the Magistrate to find (beyond reasonable doubt) that the appellant was exceeding the speed limit by 25 km/h or more but less than 35 km/h. This would have justified and required a minimum suspension of 1 month under sch 5 to the RSA. Contrary to the submissions of the respondent, I would have followed the course adopted in the earlier cases of imposing an appropriate penalty myself rather than remitting the matter back to the Magistrates’ Court for the imposition of a penalty.
[93]As to the admissibility or reliability of such estimates, see, R v Panetta (1997) 26 MVR 332 (NSWCCA); Fairall v Hobbs [2017] 80 MVR 48 (NSWCCA); W, AJ v Police [2011] SASCFC 121; Doddridge v Tasmania [2010] TASCCA 18.
Conclusion and orders
For the reasons set out above, the appeal will be dismissed.
I will hear counsel as to costs.
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