| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S CI 2016 02641
| AUGUSTINUS KOK | Plaintiff |
| v | |
| DARREN JOHN LOMAX - and - COUNTY COURT OF VICTORIA | First Defendant Second Defendant |
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JUDGE: | EMERTON J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 23 February 2017 |
DATE OF JUDGMENT: | 21 March 2017 |
CASE MAY BE CITED AS: | Kok v Lomax & anor |
MEDIUM NEUTRAL CITATION: | [2017] VSC 82 |
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JUDICIAL REVIEW AND APPEALS – Application for review of a decision of a Judge of the County Court of Victoria – Plaintiff found guilty of resisting a member of the police force pursuant to s 52(1) of the Summary Offences Act1966 (Vic) – Whether judge erred by failing to consider self-defence – Application for review dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr G Nash QC with Mr J Laverty | Chester Metcalfe & Co |
| For the First Defendant For the Second Defendant | Ms F L Dalziel No Appearance | Office of the Director of Public Prosecutions |
HER HONOUR:
Introduction
The plaintiff, Mr Kok, was due to appear in the Korumburra Magistrates’ Court on 28 February 2013 on charges of contravening an intervention order and stalking. He failed to appear in court on that day, as he suffered a major medical emergency and was unable to contact the relevant persons to advise them of the reason for his non-attendance at court.
The events which are the subject of this proceeding took place approximately one month later, on 22 March 2013, when the defendant, Officer Lomax, went to the caravan park operated by Mr Kok in Port Welshpool with a warrant for his arrest for failing to appear before the magistrate in Korumburra. As a result of those events, Mr Kok was charged with resisting a member of the police force in the execution of his duty (‘resisting arrest’) pursuant to s 52(1) of the Summary Offences Act1966. That charge was heard in the Magistrates’ Court of Victoria on 6 March 2015, along with the charges relating to the breach of the intervention order and stalking. Mr Kok was acquitted of all charges other than the charge of resisting arrest.
Mr Kok appealed to the County Court against the finding of guilt on the charge of resisting arrest. The appeal was heard in the County Court at Morwell on 19 May 2016. Having heard the evidence and the submissions of the parties, the judge found Mr Kok guilty of the charge of resisting arrest and ‘without conviction’ released Mr Kok on an adjourned undertaking to 18 November 2016 with conditions that he be of good behaviour and attend before the court if given notice to do so during the period of the adjournment.
Mr Kok now seeks an order in the nature of certiorari quashing the order of the County Court and an order that a verdict of ‘not guilty’ to the charge of resisting arrest be entered in his favour. Alternatively, he…
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- AGLC
- Kok v Lomax [2017] VSC 82
- Case
- [2017] VSC 82
- Decision Date
CaseChat Overview and Summary
The court held that the applicant was not entitled to succeed in his application for judicial review. The court accepted that the County Court was required to consider whether self-defence was established on the evidence. However, the court found that the County Court had given consideration to the issue and concluded that self-defence was not established on the evidence. The court concluded that there was no error in the County Court's reasoning and that the application for judicial review should be dismissed. The court dismissed the application for judicial review.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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