Kok v Lomax - [2017] VSC 82

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

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…

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading Kok v Lomax

Details

AGLC: Kok v Lomax [2017] VSC 82
Case: [2017] VSC 82
Decision Date: 21 March 2017

CaseChat Overview and Summary

Kok has applied for judicial review of a decision of a County Court Judge who found him guilty of resisting a member of the police force. The applicant's appeal against the conviction and sentence was dismissed by a differently constituted County Court bench. The County Court held that the evidence did not establish self-defence as a matter of law. The applicant then sought judicial review of the County Court decision. The applicant argued that the County Court erred by failing to consider self-defence.
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