8 February 2018 (Last written submissions filed 21 May 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…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Kinnersly v Johnson [2018] VSC 752
Case
[2018] VSC 752
Decision Date
CaseChat Overview and Summary
Kinnersly v Johnson was an appeal heard by the court concerning the conviction of the appellant for a speeding offence. The appellant, who failed to appear before the Magistrates’ Court, had his case determined by the Magistrate on the basis of a preliminary brief, as permitted by sections 80 and 84 of the Criminal Procedure Act 2009. The appellant contested the conviction, arguing that the charge should have been proven beyond reasonable doubt based on admissible evidence, with the exception of the rule against hearsay. The court was required to decide whether the conviction was valid under these conditions.
The court examined the legal framework provided by the Criminal Procedure Act 2009, the Road Safety Act, and the Evidence Act, alongside relevant regulations and rules. It considered the procedural requirements and the circumstances under which a conviction could be determined in the absence of the accused. The court noted that the appellant's failure to appear and the procedural safeguards in place meant that the Magistrate had the authority to proceed with the case based on the preliminary brief. Furthermore, the court highlighted the applicability of the rule against hearsay in this context, confirming that the evidence used was permissible.
In its reasoning, the court concluded that the procedural steps taken by the Magistrate were within the legal framework and did not infringe upon the appellant's rights. The court determined that the evidence, excluding hearsay, was sufficient to meet the requirements of the charge. Consequently, the appeal was dismissed, and the conviction was upheld. The court's decision was grounded in the statutory provisions and the procedural fairness afforded to the appellant, despite his absence.
No additional orders were made beyond the dismissal of the appeal and the affirmation of the conviction.