Kok v Lomax & Anor - [2017] VSCA 366

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCI 2017 0045

AUGUSTINUS KOK	Applicant
v
DARREN JOHN LOMAX	First Respondent
and COUNTY COURT OF VICTORIA	Second Respondent

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JUDGES:	TATE, McLEISH and ASHLEY JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	15 November 2017
DATE OF JUDGMENT:	12 December 2017
MEDIUM NEUTRAL CITATION:	[2017] VSCA 366
JUDGMENT APPEALED FROM:	[2017] VSC 82 (Emerton J)

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JUDICIAL REVIEW – Summary offence of resisting arrest – Whether judge sitting alone hearing appeal on summary charges required to deal with any defence raised on the evidence – Whether self-defence raised on the evidence – Whether finding that accused’s fear was unreasonable open on the evidence – Pemble v The Queen (1971) 124 CLR 107 distinguished – Zecevic v Director of Public Prosecutions (1987) 162 CLR 645 applied – Summary Offences Act 1966, s 52(1) – Leave to appeal granted – Appeal dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr G Nash QC	Chester Metcalfe & Co
For the First Respondent	Ms C A Boston	John Cain, Solicitor for Public Prosecutions
For the Second Respondent	No appearance

TATE JA

McLEISH JA
ASHLEY JA:

Introduction and summary

Mr Augustinus Kok (‘Kok’) was found guilty in the County Court of resisting arrest when a police officer, Senior Constable Darren Lomax (‘Lomax’), sought to execute a warrant for Kok’s arrest.[1] Kok gave evidence that he resisted because he believed he would be put into the back of a police divisional van, known as the ‘pod’, and he feared for his safety due to his medical conditions. He did not rely on the defence of self-defence or lawful excuse. He brought a proceeding in the Supreme Court on the basis that the judge in the County Court ought to have considered self-defence and/or lawful excuse because it was open on the evidence, although he did not rely on it. A judge of the Trial Division of this Court rejected Kok’s challenge and dismissed the proceeding.[2] Kok now seeks leave to appeal from that decision.
[1]Kok v Lomax (Unreported, County Court of Victoria, Judge Murphy, 19 May 2016) (‘County Court reasons’).
[2]Kok v Lomax [2017] VSC 82 (Emerton J) (‘Supreme Court reasons’).

For the reasons that follow, we would grant leave to appeal but dismiss the appeal.[3]
[3]In what follows on most occasions we refer simply to ‘the appeal’.

The attempt to execute the warrant

The events giving rise to the proceeding occurred on 22 March 2013. Kok was due to appear in the Korumburra Magistrates’ Court on 28 February 2013 on charges of contravening an interim personal safety intervention order and stalking. He failed to appear. It seems Kok was unable to attend because he had suffered a major medical emergency on that day and was admitted to hospital. He could not contact the relevant people to inform them he could not appear. A warrant was issued for his arrest.

When Kok was later released from the hospital, he was discharged on crutches.

On 22…

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 & Anor

Details

AGLC: Kok v Lomax [2017] VSCA 366
Case: [2017] VSCA 366
Decision Date: 12 December 2017

CaseChat Overview and Summary

In the case of Kok v Lomax & Anor, the appellant was appealing against a conviction for resisting arrest. The conviction arose from an incident where the appellant allegedly resisted arrest for a parking offence. The appeal was heard in the Court of Appeal of the Supreme Court of Victoria. The appeal was heard by a single judge, which was contested by the appellant, who argued that a single judge was not the appropriate tribunal to hear an appeal on summary charges when a defence had been raised on the evidence.

The primary legal issues before the court were whether a judge sitting alone hearing an appeal on summary charges was required to deal with any defence raised on the evidence, whether self-defence had been raised on the evidence, and whether the finding that the appellant's fear was unreasonable was open on the evidence. The appellant argued that the trial judge had erred in not considering self-defence as a defence and in finding that the appellant's fear was unreasonable. The respondent argued that the trial judge had not erred in law and that the findings were open on the evidence.

The court held that a judge sitting alone hearing an appeal on summary charges was not required to deal with any defence raised on the evidence unless the defence was raised in the pleadings or was otherwise properly before the court. The court found that self-defence was not raised in the pleadings or otherwise properly before the court. The court also found that the trial judge's finding that the appellant's fear was unreasonable was open on the evidence, and that the appeal should be dismissed. The court noted that the test for self-defence was set out in Zecevic v Director of Public Prosecutions (1987) 162 CLR 645, and distinguished Pemble v The Queen (1971) 124 CLR 107, which was not applicable to the facts of the case.

The court dismissed the appeal and made no orders for costs.

Orders