Kostiuk v KH (a pseudonym)
[2024] VSC 586
•23 September 2024
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S ECI 2023 04448
| FELIX KOSTIUK (a police officer) | Plaintiff |
| v | |
| KH (a pseudonym) | First Defendant |
| and | |
| MAGISTRATES’ COURT OF VICTORIA | Second Defendant |
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JUDGE: | Ginnane J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 29 May 2024 |
DATE OF JUDGMENT: | 23 September 2024 |
CASE MAY BE CITED AS: | Kostiuk v KH (a pseudonym) |
MEDIUM NEUTRAL CITATION: | [2024] VSC 586 |
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JUDICIAL REVIEW — Sex Offenders Register — Application for order that an offender comply with the reporting obligations under the Sex Offenders Registration Act 2004 — Prosecutor applying for adjournment to obtain further supporting material — Adjournment refused and application struck out — Whether denial of procedural fairness — Magistrate’s remarks about the offender in sentencing remarks — Whether remarks established apprehended bias by the Magistrate in deciding application — Risk that offender would not have legally aided representation on any adjourned date — Whether Magistrate applied incorrect statutory test to application — Whether informant could make a second application for same order — Error in order recording that the application was withdrawn when application struck out — Sex Offenders Registration Act 2004 s 11; Magistrates’ Court Act 1989 s 136.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr PJ Matthews SC | Victoria Police |
| For the First Defendant | Dr E Kelly | Stary Norton Halphen |
HIS HONOUR:
The plaintiff, who is a police officer and who was the informant in the underlying prosecution (hereafter referred to as ‘the informant’), seeks judicial review of orders of the Magistrates’ Court of Victoria made on 27 July 2023, whereby his application under s 11 of the Sex Offenders Registration Act 2004 (‘SORA’ or ‘the Act’) for an order that the first defendant comply with reporting obligations under the Act was struck out. I will refer to the first defendant as the defendant as the second defendant did not participate in the proceeding. The Court’s order records that the application was:
Struckout
- Withdrawn
The informant seeks the quashing of that order and the rehearing and determination of his application by a different Magistrate.
In his Amended Originating Motion, the informant stated that on 24 July 2023, the defendant was found guilty of offences in the Magistrates’ Court of Victoria. These offences were fourteen counts of entering a private place without lawful excuse under s 9(1)(e) of the Summary Offences Act 1966 and one count of breaching a prescribed condition of parole under s 78A of the Corrections Act 1986. Other charges were withdrawn. The Magistrate sentenced the defendant to a Community Corrections Order of six months and also made an intervention order against him. The prosecutor then informed the Magistrate that the informant was applying for an order under s 11 of the SORA requiring the defendant to comply with reporting obligations. The application was listed for hearing at 2.00pm on 27 July 2023. However, at the request of the defendant’s counsel, the application was mentioned at 10.00am that day apparently because she was aware that the informant was seeking an adjournment of the Sex Offenders Registration Act application (‘SORA application’) to obtain further supporting material and wished to learn if the application was to proceed at 2.00pm. The prosecution had arranged for the informant and two other police officers to attend Court at 2.00pm, however, the informant was able to be present at 10.00am by video link. The Magistrate refused the prosecutor’s application for an adjournment and struck out the SORA application.
The informant’s grounds of judicial review are:[1]
[1]I have assigned each ground of judicial review a number from 4 to 7, which corresponds with the paragraph number in which each ground appeared in the Amended Originating Motion. Paragraphs 1 to 3 of the Amended Originating Motion contain factual matters.
(a) Ground 4: On 27 July 2023, the second defendant failed to afford procedural fairness to the plaintiff in striking out the application rather than adjourning it, thereby denying the plaintiff a right to be heard in relation to the application proper.
(b) Ground 5: Further and/or in the alternative, the second defendant in striking out the application demonstrated a reasonable apprehension of bias against the plaintiff in favour of the first defendant.
(c) Ground 6: Further and/or in the alternative, the second defendant incorrectly identified the relevant legal test in relation to s 11 of the Act, by stating that the acts which were alleged to be of a sexual nature were withdrawn, and that the application was ‘bereft of evidence of a sexual nature’, whereas the test in s 11(3) is that the first defendant ‘poses a risk to the sexual safety of one or more persons or of the community’.
(d) Ground 7: Further and/or in the alternative, the second defendant in striking out the application failed to consider relevant evidence.
(e) Ground 8: Further and/or in the alternative, the second defendant in striking out the application took into account an irrelevant consideration, namely that the first defendant was not the beneficiary of a grant of Legal Aid for the application.
(f) Ground 9: Further and/or in the alternative, the second defendant in striking out the application erred by concluding that the plaintiff had a right to bring another application before the court at a further time in a manner akin to an application under the Bail Act 1977 (Vic).
(g) Paragraph 2(g) of the Plaintiff’s Claims section of the Amended Originating Motion. Noting on the court record that the application was struck out due to being withdrawn when it was not.[2]
[2]This contention was not included in the Grounds section of the Amended Origination Motion, but in the Plaintiff Claim(s) section. However, the plaintiff relied on the contention and both the plaintiff and first defendant made submissions about it.
I will next describe the events at the two hearings in more detail. I will sometimes refer to the hearing on 24 July 2023 as ‘the first hearing day’ and the hearing on 27 July 2023 as ‘the second hearing day’.
First hearing day - 24 July 2023
On 24 July 2023, the defendant, entered pleas of guilty to 14 charges of trespass, and one of breach of parole.
The prosecutor’s case summary included the following. During the period of offending, the defendant was on parole, subject to conditions including not breaking any law, remaining at a particular address between 9.00pm and 6.00am, not having visitors attend his residence, and being monitored by an electronic monitoring device. The offences included an incident on 7 May 2022 when a complainant, while showering in her ground floor apartment, noticed the defendant looking at her through her bathroom window. She screamed loudly and the defendant jumped before disappearing from the window. After the complainant reported the incident to the police, they commenced digital and physical surveillance of the defendant. This surveillance identified what the police described as the defendant’s practice of leaving his home around 7.00pm to walk in the surrounding streets. He would peer through ground floor apartment windows for between one to three minutes, return home shortly thereafter, leave his home again around 8.00pm, peer through ground floor apartment windows, and return home a few minutes before his 9.00pm curfew. The data obtained from the defendant’s electronic monitoring bracelet corroborated the physical surveillance of the defendant. On 29 May 2022, the defendant attended an address and peered through an illuminated window into an apartment on the ground floor. He spent 11 minutes at the address before leaving. On the same evening, he attended four other nearby apartment complexes, walked down their driveways or pedestrian entrances to the rear and spent a few minutes there. The next evening, the defendant attended an apartment complex in the same area for about a minute and leaned forward and looked into two windows before leaving. On the next day, 31 May 2022, the police observed the defendant attending six or seven apartment buildings in the same area, including on at least two occasions, peering into ground floor windows. The defendant was arrested on 1 June 2022.
The Magistrate found the defendant guilty of the offences and adjourned the hearing until later in the day, so that his suitability for a Community Corrections Order could be assessed. After the assessment, the hearing resumed and the Magistrate sentenced the defendant to a Community Corrections Order for six months, with conditions including supervision, medical assessment and treatment as directed, and any other treatment and rehabilitation in relation to his offending behaviour as directed. An intervention order was also made against him.
The informant commenced the SORA application in December 2022. The written application, which was served on the defendant, was supported by 66 pages of material, including an affidavit by the informant and other statements. The prosecutor mentioned the application to the Magistrate during her summary of the offences.
After stating that the defendant would be assessed for a Community Corrections Order, the Magistrate referred to the informant’s SORA application and the following discussion with the prosecutor occurred:[3]
[3]Magistrates’ Court Transcript of Proceedings (‘MCV’) 24 July 2023, T21-T22.
HER HONOUR: As for the other application, it’s pretty clear that I am not – I’m refusing that application. You just don’t have enough to go with, Madam Prosecutor.
PROSECUTOR: Not in combination with the priors and the ---
HER HONOUR: Well the prior – I haven’t heard the – what the rape actually amounts to, unless you wanted to try and say that he’s got some tendency. And it would be a pretty bold submission to say that he has a tendency to make unwelcomed advances. I gather the rape was a non-consensual sexual situation. There’s no stalking that was attached to that?
PROSECUTOR: There was no stalking attached to that, no.
HER HONOUR: It would be different if there was that. If you had a summary where there was stalking and then the rape you would have an argument, but you don’t.
PROSECUTOR: There are – there is other intelligence holding. Perhaps once Your Honour has given sentence in this matter if Your Honour is minded to hold judgment on the SORA application---
HER HONOUR: I’ll reserve my judgment if you’ve got more evidence, but I’m just tentatively letting you know---
PROSECUTOR: Yes, Your Honour.
HER HONOUR: --- what my tentative view is.
PROSECUTOR: Yes.
HER HONOUR: Thank you.
Later in the day, after the defendant’s assessment for a Community Correction’s order had occurred and the Magistrate had sentenced him, the prosecutor and the Magistrate had the following discussion:
HER HONOUR: All right. So you have a further application to make, is that right, Madam Prosecutor?
PROSECUTOR: Yes, Your Honour. I did wish to continue. I note Your Honour’s earlier commentary but the – continue the application for the sex offenders registration, albeit discretionary.
There are a number of matters that, seen in combination, do make the trespass and the elements of the offending before the court sexual in nature. The subjective interest in pursuing sexual activity and the conduct and nature of the trespass, albeit that it’s put on the basis that he did not have the authorisation to be there, there is conduct where he is peering in windows.
I note there were submissions that stated that peering wasn’t quite as put by the operatives. There is information that he does approach a female operative that was positioned at a bus stop near his house. He directly approached and then commences conversation, asked her relationship status and whether she wished to attend at his---
HER HONOUR: That wasn’t before the court.
PROSECUTOR: No. That’s a part of the application. The court ---
HER HONOUR: Well (indistinct) application when I’m not minded to really do it at 10 past 4. And that’s not your fault at all.[4]
[4]MCV Transcript 24 July 2023, T26-27.
Her Honour adjourned the hearing of the application for three days, to 27 July 2023.
Second hearing day - 27 July 2023
On 27 July 2023, the SORA application was listed for 2.00pm, at which time the informant and two other police officers were to attend Court and be available to give evidence about the SORA application. However, as I have mentioned, at the request of the defendant’s counsel, the application was mentioned at 10.00am to discuss what should happen at 2.00pm. The prosecutor then applied to adjourn the hearing so that further evidence could be gathered in support of the SORA application.[5]
[5]Magistrates’ Court of Victoria, Transcript of Proceedings, (‘MCV’) 27 July 2023, T1 L23–28.
The informant described that further information in his affidavit made in this proceeding as ‘intelligence holdings able to discredit the mitigating reasons for offending provided by the first defendant’ which were in Corrections Victoria’s possession and which he had requested on 24 July. A number of intelligence holdings were provided to him on 27 July.[6] It is not apparent how this material would have been relevant to the SORA application and, to the extent that it concerned the defendant’s allegations of being assaulted in prison, the Magistrate had already taken those allegations into account when sentencing him on 24 July. The informant also wished to rely on a ‘Static-99’ risk assessment of the defendant, which was designed and used to predict sexual recidivism in offenders. He had obtained that assessment on 27 July from the Victoria Police Offender Management Division. There had been insufficient time to disclose those documents to the defence.[7]
[6]Affidavit of Felix Kostiuk, 19 September 2023, [17] and [20].
[7]Ibid, [18].
During the hearing in this Court, counsel for the informant, without opposition from the defendant, informed me that at 9:57am on 27 July, the informant emailed the police prosecutor stating that permission had been obtained from Corrections Victoria to provide to the defence the Corrections material that was relevant to the defendant’s allegations that he had been assaulted in custody and to use them in the SORA application.[8] It appears that the prosecutor was unaware of the email when she addressed the Court a few minutes later.
[8]Transcript of Proceedings, Kostiuk v KH (a pseudonym) (Supreme Court of Victoria, S ECI 2023 04448), Ginnane J, 29 March 2024, (SCV), T88-9.
When the prosecutor sought an adjournment of the SORA application, the Magistrate initially said that she would grant the adjournment, but then the defendant’s counsel opposed it on the ground that Legal Aid would not fund legal representation for the defendant to resist the SORA application on the adjourned hearing day.[9] The four pages of transcript of the hearing include the following:[10]
[9]MCV Transcript 27 July 2023, T1 L31–34, T2 L1–5.
[10]Ibid, T1–4.
HER HONOUR: Good morning,[defendant]. Good morning. So it sounds as though there's been a bit of a mix-up with the listing of this matter, doesn't there?
PROSECUTOR: Yes, my understanding according to the list that we got sent - the matter was listed for 2 o'clock. I have asked my informant to appear on the link. He was to appear in person this afternoon along with two other members.
But to be transparent, Your Honour, it is an application for an adjournment of the application of SORA. Reason for that is that we have - it's ongoing investigation of some outstanding information that the informant is looking into with regards to - that will assist with regards to the question of - - -
HER HONOUR: All right. Well, I'm happy to grant the adjournment.
DEFENCE COUNSEL: Your Honour, the adjournment is opposed. The adjournment application is opposed and I apologise. This is why I asked for the matter to be mentioned to potentially save court time this afternoon.
HER HONOUR: Right, okay.
DEFENCE COUNSEL: There are two reasons for that, Your Honour. The first is it's an unfortunate quirk of the system that Legal Aid doesn't actually fund hearings for resisting SORA applications.
HER HONOUR: Right.
DEFENCE COUNSEL: Now, [the defendant] is legally aided through the firm Stary Norton Halphen. My instructor and I consider today to be an extension of the plea from Monday, given that it was sort of a part of the plea that Your Honour heard on Monday.
HER HONOUR: At that point it was, yeah.
DEFENCE COUNSEL: However, it's become a stand-alone.
HER HONOUR: It's now, given what [the Prosecutor] said all right. I tend to agree with that, [Prosecutor]. If you've got other information, if you've got evidence to put before the court you can do so on another occasion. You can initiate the application. Because I'm telling you now, [Prosecutor] - - -
PROSECUTOR: Yes, Your Honour.
HER HONOUR: - - - the more I think about your application, it's fraught.
PROSECUTOR: That's the reason it's too wide. There's further information that has to be ascertained.
HER HONOUR: Well, then if you get those statements and they're served upon the accused for the purpose of making such an application - that's what you can do.
PROSECUTOR: I'm not sure if you strike out the application if we have an opportunity to put another application because you've already struck it out.
HER HONOUR: You will have. It's like a bail application. There's no harm in that at all. I don't want [the defendant] to be … without a lawyer.
PROSECUTOR: Yes, Your Honour.
HER HONOUR: And he is in a difficult set of circumstances. I've sentenced him. The acts that were alleged to be of a sexual nature were withdrawn.
PROSECUTOR: Yes, Your Honour.
HER HONOUR: So I struck those out. This is a fraught application at the moment, so I'm - it is bereft of evidence of a sexual nature.
PROSECUTOR: Yes, Your Honour. And there is evidence of a sexual nature but the informant is currently investigating.
HER HONOUR: Working on it. Well - - -
PROSECUTOR: There is also - - -
HER HONOUR: Once it's done, [Prosecutor] - - -
PROSECUTOR: There is also a risk assessment - - -
HER HONOUR: - - - the application can be made.
PROSECUTOR: - - - that's been done by the SOR team and police. My concern is that if a further application is made [the defendant] will find himself in the same situation that Legal Aid cannot fund an opposed SOR. So it's the same situation, regardless of if the matter is adjourned or any application is made.
HER HONOUR: Well, that remains to be seen. We can't predict the future. But if you do - for example, if you have statements - - -
PROSECUTOR: Yes, Your Honour.
HER HONOUR: - - - that are served, you have an affidavit by the informant that is served upon the accused man, he might have to get then a private lawyer, I don't know. But at the moment I'm striking out the application.
PROSECUTOR: As Your Honour pleases.
HER HONOUR: [Prosecutor], as I said before, there's nothing that - SORA is for people who are showing either sexual tendencies by indecent assaults, paedophilia. You know the standards - - -
PROSECUTOR: Yes, Your Honour.
HER HONOUR: - - - that you end up with. This is - - -
PROSECUTOR: In light of the further information we say that there is enough to apply under s.11 for a discretionary SORA.
HER HONOUR: Well, I haven't seen any of that evidence.
PROSECUTOR: As Your Honour pleases.
HER HONOUR: Thanks, [Prosecutor]. I strike the matter out.
PROSECUTOR: Yes, Your Honour.
As the Magistrate struck out the SORA it did not proceed at 2.00pm as listed. A certified extract of the order records that the application was ‘Struck-out – Withdrawn’.
I next consider the informant’s grounds of judicial review.
Ground 4 (paragraph 2(a), 2(b) and 2(e) of the Plaintiff’s Claims):[11] Denial of procedural fairness
[11]In addition to the plaintiff’s grounds, the Amended Originating Motion contained a repetition of, and additions to, those grounds in paragraph 2 under the title, ‘the Plaintiff(‘s) Claims’.
Ground 4 states:
On 27 July 2023, the second defendant failed to afford procedural fairness to the plaintiff in striking out the application rather than adjourning it thereby denying the plaintiff a right to be heard in relation to the application proper.
Submissions on ground 4
The informant submitted that the Magistrate denied him procedural fairness because he was not given the opportunity to have the SORA application heard and determined. Nor was he given the opportunity to have the prosecutor call, or present, relevant evidence, including his own, or to have the prosecutor outline that evidence, so that her Honour could properly consider it. The prosecutor had informed the Magistrate that she was seeking to lead additional evidence gathered by the informant. This included calling the informant and two other police officers to give evidence,[12] as well as relying on intelligence holdings.[13] The prosecutor informed her Honour that there was evidence of a sexual nature that the informant was currently investigating.[14] This evidence was intended to establish that, viewed in combination, the defendant’s offending was sexual in nature and could justify the making of a SORA order under s 11(3) of the Act, given the risk that the defendant posed to the sexual safety of one or more persons in the community.[15]
[12]MCV Transcript 27 July 2023, T1 L18-22.
[13]MCV Transcript 24 July 2023, T21-22, 26-27.
[14]MCV Transcript 27 July 2023, T3 L11-13.
[15]MCV Transcript 24 July 2023, T26-27.
The informant contended that the Magistrate struck out his application on her own motion, citing reasons which the defendant had not argued and which the prosecutor had not had an opportunity to address. Her Honour made no enquiry as to what investigations were outstanding, how long they would take, and did not otherwise enable the prosecutor to develop the adjournment application.
The informant submitted that once the Magistrate decided to dismiss the prosecutor’s adjournment application, her Honour should have heard and determined his SORA application based on the material that the prosecutor could present. That application was ready to proceed, although the defendant may have required further disclosure of documents and adequate time to respond to their contents.
Because the application was initially listed for 2.00pm, but was mentioned at 10.00am at the request of the defendant, the prosecutor was in a difficult position with limited time to speak with the informant, who had to leave another commitment, and quickly become available on the video link.
The informant also submitted that nothing said by the prosecutor, given the time constraints that she was under at the 10.00am mention, suggested that the informant did not wish to proceed with the application. The informant and two other police officers were to attend court at 2.00pm. The prosecutor did not say more in effect than that there was material in addition to the offending for which the defendant had been convicted, that would justify a SORA order being made. The effect of the prosecutor’s submissions was that she wished to proceed to make the SORA application.
In response, the defendant submitted that the transcript, when read in its entirety, revealed that the Magistrate refused the adjournment application but did not determine the SORA application. Her Honour exercised the Court’s procedural powers, including those contained in s 136 of the Magistrates’ Court Act 1989 to give directions with the object of achieving justice according to law. The Magistrate was entitled to consider the prejudice to the defendant from not being legally aided at an adjourned hearing. The Court would be reluctant to overturn a lower court’s refusal of an adjournment unless it would result in a party being denied justice. The informant could bring another SORA application under s 11 when he received the further material he was awaiting. To do so within the 45 days allowed would cause him minimal inconvenience.
The defendant submitted that the Magistrate gave the prosecutor an opportunity to make submissions about the informant’s adjournment application and considered the relevant matter of the prejudice that the defendant would suffer if that application was granted. The informant was in a position to make his SORA application on 27 July because the prosecutor had the police summary, the 66 page of material assembled to support the application, and ‘a further charge’.[16] The prosecutor did not inform the Magistrate when the further material would be available, but sought the indulgence of more time to gather material to improve the application.
[16]Ibid, T91.
However, the defendant contended that the prosecutor failed to adequately inform the Magistrate that the SORA application could proceed on the existing material before the Court. The prosecutor’s indication that there was further information to be ascertained contributed to the Magistrate concluding that the SORA application was not ready to be heard, leading her to strike it out. The strike out order was the consequence of the refusal of an adjournment and the prosecutor was on notice that the Magistrate might make such an order.
Analysis of ground 4
I consider that the Magistrate did not err in refusing the prosecutor’s adjournment application on 27 July. Her Honour based her decision on the relevant consideration that an adjournment might cause prejudice to the defendant, because he may not have legal representation on another day. Her Honour stated that she did not wish the defendant to be without a lawyer.[17] Of course, the same problem might well have existed if the informant brought a second SORA application. Nevertheless, on 27 July her Honour was faced with the prosecution seeking to adjourn the SORA application on a day when the defendant was legally represented. In those circumstances, her Honour did not err in exercising her discretion to refuse the adjournment.[18]
[17]MCV Transcript 27 July 2023 T3 L1-2.
[18]Bloch v Bloch (1981) 180 CLR 390, 395-6; Cucu v District Court of New South Wales (1994) 73 A Crim R 240.
However, I do consider, with respect, that having refused the adjournment application, her Honour erred by proceeding to strike out the SORA application. That additional order was not an inevitable consequence of refusing the adjournment.
I consider that her Honour, after refusing the adjournment, should have enquired of the prosecutor whether the informant wished to proceed with the SORA application that day and, if he did, then the Magistrate should have proceeded to hear and determine the application on its merits at 2.00pm that day. The police application had been served on the defendant in December 2022.
When a court refuses a party’s application for an adjournment, in most circumstances, the court should give that party the opportunity to proceed to make their application, on the existing material, if they so wish, or to take some other course.
In this case, if the Magistrate had asked the prosecutor what course she wished to follow, the prosecutor may have sought a few minutes to obtain instructions from the informant, and if the informant wished to proceed with the application, as it appears he would have, the application could have been listed at 2.00pm as originally scheduled. By that time, it is probable that the prosecutor would have learned that Corrections Victoria had given approval for intelligence holdings to be used in the application and provided to the defendant, although a dispute may have arisen about whether the prosecution should be permitted to rely on that material, or the defence may have requested an adjournment to consider it. The Magistrate was not informed that the informant had been given approval to rely on the Corrections Victoria intelligence holdings.
However, any possible dispute about the use of the Corrections Victoria material is not relevant to the fact that, because of the way events unfolded, the informant was not given the opportunity to decide whether to proceed with the SORA application after his request for an adjournment was refused.
The fair hearing rule requires that the parties be given a reasonable opportunity to present their case.
The SORA application had been adjourned to 2.00pm on 27 July for hearing, and the fact that the prosecutor’s application for a further adjournment was refused did not remove the informant’s right to have the prosecutor present the SORA application. The default position was that the SORA application was before the Court for hearing and determination at 2.00pm and the refusal of an adjournment application only reinforced that the SORA application remained before the Court for hearing and determination. The prosecutor retained the usual rights of calling evidence and making submissions in support of the informant’s application. The informant was entitled to have the Magistrate consider the evidence that the prosecutor could present and decide the SORA application on its merits, but that did not occur.
The Magistrate was not informed of the 66 pages of material that the informant relied on to support the SORA application, but that was material which the prosecutor could have relied on if the informant’s application was heard on 27 July. That material included the following. An outline of submissions, which in paragraph one relied on the charge of stalking in breach of s 21A(1) of the Crimes Act 1958 which was said to be a Schedule 3 or 4 offence. However, that charge had been withdrawn. The material also contained an affidavit by the informant, in which he described the offences with which the defendant was charged. It also described that in April 2017, the defendant was found guilty of a charge of rape committed in May 2016 and sentenced to 5 years and 6 months imprisonment. In May 2013, the defendant was found guilty of entering a private place without lawful excuse and of unlawful assault and sentenced to a Community Corrections Order. The affidavit stated that there were 18 Victoria Police information reports with intelligence holdings concerning the defendant’s conduct. The affidavit concluded with the informant’s assertion that the defendant ‘has shown himself to be an unacceptable risk to the sexual safety of one or persons in the community’. The affidavit exhibited six Police Information Reports detailing the defendant’s behaviour and five Victoria Police Field Contact Records. The appendices to the affidavit include the informant’s Statement of Alleged Facts about the charges, a Statement of Material Facts by a police officer about the rape offence and a Summary of Charges by a police officer concerning the defendant’s 2013 conviction.
The prosecutor said nothing to abandon the informant’s right to have the SORA application heard and determined, and stated that ‘in light of the further information we say that there is enough to apply under s 11 for a discretionary SORA’.[19] It is true that the Magistrate was entitled to assume that the prosecutor had not obtained the further material that the informant sought and said ‘[w]ell, I haven’t seen any of that evidence’, and then ‘I strike the matter out’.[20]
[19]MCV Transcript, 27 July 2023, T4.
[20]Ibid.
A key question is whether the Magistrate might reasonably have interpreted the prosecutor’s statement after the refusal of the adjournment as meaning that the informant was not ready to proceed because he did not have the necessary materials. The prosecutor’s statement that ‘in light of the further information we say that there is enough to apply under s 11 for a discretionary SORA’ may have contained some ambiguity. However, it was not an abandonment of the application which had yet to be commenced. Of course, it was not her Honour’s responsibility to suggest how the prosecutor might conduct the informant’s case, however, the prosecutor’s statement was sufficient indication that the informant was seeking to have the application heard and determined. I do not consider that the prosecutor needed to state that that was the informant’s application in any clearer words. In addition, as the hearing on 27 July moved quickly, in my opinion, as I have previously stated, after refusing the adjournment, the Magistrate should have asked the prosecutor what she wished to do. The prosecutor received limited warning that the Magistrate might strike the application out at the 10.00am mention if an adjournment was refused. The defendant did not seek such an order.
The Magistrate was presiding in a busy Court and was required to make the decisions, which are now challenged, with little time for reflection. Her Honour’s task would have been aided had she been told that the informant had prepared a detailed written application in support of his SORA application, which was available to be presented, and had she been given a summary of its contents. As she was not, it is understandable why her Honour might have concluded that significant evidence on which the informant relied was yet to be obtained. The issue of the prosecutor obtaining this further evidence seemed to obscure the fact that the informant relied on the 66 page police application, as well as his evidence and that of two other police officers. There was considerable material contained in the 66 pages of supporting material that the prosecutor could have presented to the Court at 2.00pm, which would have enabled the Magistrate, after also hearing the defence case, to decide whether to make a SORA order under s 11(3).
In my respectful opinion, considering all the circumstances, the prosecutor did not receive a reasonable opportunity to present the informant’s case for the SORA application. The prosecutor made it sufficiently clear at the 10.00am hearing on 27 July that she wished to present the application. The informant’s right to a fair hearing required that the prosecutor be given the right to call and tender evidence and present submissions in support of the application. The prosecutor was not given that opportunity.
Ground four is established.
Ground 7 (paragraph 2 (e) of the Plaintiff’s Claims) – Failure to consider relevant evidence
It is appropriate at this point to consider ground 7 (paragraph 2(e) of the Plaintiff’s Claims), which the informant relied on in association with his contention that he did not receive a fair hearing. He alleged that the Magistrate failed to consider relevant evidence. I do not consider that ground to be established as the relevant evidence, including the 66 page SORA application and the Corrections Victoria documents, was not presented to her Honour. Rather the application was struck out without evidence being presented. I consider that ground 4 best describes the error that occurred in that process rather than ground 7 or paragraph 2(e).
Ground 7 is not established.
Ground 5 (paragraph 2(c) of the Plaintiff’s Claims): Apprehended bias
Ground 5 alleges that:
Further and/or in the alternative, the second defendant in striking out the application demonstrated a reasonable apprehension of bias against the plaintiff in favour of the first defendant.
The Magistrate’s comments when sentencing the defendant included statements appearing to accept that he was assaulted while in prison,[21] about his apparent ‘fall from grace’ following the impact of the rape conviction upon his employment prospects given his diligence in pursuing his education,[22] and that his conduct was due to his isolation.[23]
[21]MCV Transcript 24 July 2023 T18 L25-28.
[22]Ibid, T20 L15-20.
[23]Ibid, T18, L3-4.
The informant relied on comments by the Magistrate during the plea and sentencing hearing on 24 July, as indicating a favourable disposition towards the defendant. These were:
(a)‘Sadly, the rape conviction that you already have on your record has damaged your life prospect’.[24]
(b)‘… because you’re – you’ve been very diligent in terms of education. It’s extraordinary that you can speak four languages’.[25]
(c)‘You’ve done brilliantly’.[26]
(d)‘This is a classic example of how a conviction can have remarkable effects upon a person’s life, and that’s why the spent conviction legislation is really important … [To KH’s counsel] So you can give him some advice about that’.[27]
(e)‘Good luck to you [KH]. You can still get jobs and I hope you do get a job’.[28]
[24]Ibid, T20 L15–16.
[25]Ibid, T20 L18–20.
[26]Ibid, T20 L28.
[27]Ibid, T24 L12–17.
[28]Ibid, T30 L18–20.
In Charisteas v Charisteas[29] the High Court described the application of the test for whether a fair-minded lay observer might reasonably apprehend that the judicial officer might not bring an impartial mind to the resolution of the questions he or she was required to decide as follows:
Its application requires two steps: first, “it requires the identification of what it is said might lead a judge ... to decide a case other than on its legal and factual merits”; and, secondly, there must be articulated a “logical connection" between that matter and the feared departure from the judge deciding the case on its merits. Once those two steps are taken, the reasonableness of the asserted apprehension of bias can then ultimately be assessed.[30]
[29](2021) 273 CLR 289.
[30]Ibid, 296 [11] referring to Ebner v Official Trustee (2000) 205 CLR 337, 344-5[6]-[8].
Applying that test, the informant submitted that the ‘cumulative effect’ of the Magistrate’s remarks, and ultimate orders refusing the adjournment and striking out the SORA application, would lead the hypothetical observer to conclude that her Honour failed to bring an impartial and unprejudiced mind to the consideration of those two decisions.
The informant relied on the fact that during the short hearing on 27 July, which only resulted in four pages of transcript, the Magistrate refused an adjournment and struck out the informant’s SORA application, without giving the prosecutor an opportunity to proceed with the informant’s case later that day. The Magistrate indicated early in the hearing that she would be refusing the SORA application before she had heard any evidence or submissions concerning it. The informant also relied on the Magistrate’s immediate acceptance of the defendant’s contention that he would have a problem in securing legal representation for any future hearings if the application was adjourned. Her Honour appeared to accept that, if she struck out the SORA application, the prosecutor could make a second application once further material became available. However, the informant argued that he would suffer significant prejudice by having to re-commence the application and obtain its listing before a Magistrate within the 42 days remaining.
In response, the defendant focused on the Magistrate’s refusal of the adjournment application and submitted that the informant had not established that the hypothetical observer would have a reasonable apprehension that the Magistrate might not bring an impartial mind to the determination of the adjournment application and the SORA application. The comments said to amount to ‘undue sympathy’ for the defendant were made during the sentencing on 24 July and not during the adjournment application on 27 July.
Analysis of ground 5
The Magistrate’s remarks on 24 July explained her sentencing decision to the defendant. I do not consider that those parts of the remarks, on which ground 5 is based, would lead the hypothetical observer to reasonably apprehend that her Honour would not bring an impartial and unprejudiced mind to the determination of the adjournment and SORA applications. The informant did not establish a logical connection between her Honour’s sentencing remarks on 24 July, and her decision three days later, to refuse the adjournment application and strike out the SORA application.
The informant did not challenge the adequacy of her Honour’s sentence, being a six month’s Community Corrections Order, in circumstances where the defendant had served 104 days of pre-sentence detention. The prosecutor, when asked by the Magistrate for her submission on sentencing, stated the following: [31]
Yes, Your Honour. I appreciate the 104 pre-sentence detention days available to the court. And, really, as far as community protection goes, a Corrections order would be open to the court in this case.
The accused is going to be released – and I understand it’s only trespass charges before the court and it’s a difficult sentencing exercise in that respect. But a Corrections order with time – whether Your Honour wishes to use all time available or a subset [of the] time available would be in line in this case.
[31]MCV Transcript 24 July 2023, T17.
A judicial officer when sentencing an offender, not least to a Community Corrections Order, can express their views of the offender’s conduct and address the offender in the manner they consider appropriate. There is no script to be followed. Different judicial officers will adopt different approaches in their sentencing remarks. Mentioning the personal circumstances of the offender and the positive things they have accomplished or attempted, may be appropriate. The informant did not analyse the facts before her Honour to attempt to establish that her sentencing remarks, when read as a whole, rather than in part, fell outside a reasonable assessment of the facts of the offending and the offender’s personal circumstances. The Magistrate’s sympathetic words to the defendant about his personal circumstances and his allegations of being assaulted in prison were not unreasonable given the information that her Honour was provided with in the plea, without challenge by the prosecution. Nor was a logical basis established for the hypothetical observer to conclude that, because her Honour spoke in sympathetic and merciful terms to the offender in her sentencing remarks on 24 July, that she could not bring an independent and impartial mind to the hearing and determination of the adjournment and SORA applications on 27 July.
Ground 5 is not established.
Ground 6 (paragraph 2(d) of the Plaintiff’s Claims): Error of law in the SORA test applied
Ground 6 stated:
Further and/or in the alternative, the second defendant incorrectly identified the relevant legal test in relation to s 11 of the Sex Offenders Registration Act, by stating that the acts which were alleged to be of a sexual nature were withdrawn, and that the application was ‘bereft of evidence of a sexual nature’, whereas the test in s 11(3) is that the first defendant ‘poses a risk to the sexual safety of one or more persons or of the community’.
The informant submitted the Magistrate erred in the statutory test to be applied in considering the prospects of a SORA order being made under s 11(3) of the Act. Section 11 of the Act states in relevant parts:
11 Sex offender registration order
(1) If a court finds a person guilty of an offence committed as an adult that is not a Class 1 or Class 2 offence (including an offence that is a Class 3 or Class 4 offence), it may order that the person comply with the reporting obligations of this Act.
…
(3) The court may only make an order under this section if, after taking into account any matter that it considers appropriate, it is satisfied, beyond reasonable doubt, that the person poses a risk to the sexual safety of one or more persons or of the community.
(4) For the purposes of subsection (3), it is not necessary that the court be able to identify a risk to particular people, or a particular class of people.
(5) The court may only make an order under this section if it or a court of a foreign jurisdiction has imposed a sentence in relation to the offence (other than an order referred to in section 360(1)(b), 360(1)(c) or 360(1)(d) of the Children, Youth and Families Act 2005)
(6) The court may only make an order under this section (other than an order referred to in subsection (1A) or (2A)) if an application for the making of the order is made by the prosecution not later than 45 days after the sentence is imposed.
Relying on the Court of Appeal decision in Bowden v The Queen,[32] the informant submitted that the test for the grant of a SORA order involved two stages. The first stage was whether the risk specified in s 11(3) of the Act had been established. If so, the second stage was whether an order should be made. The informant submitted that in deciding to strike out the application, the Magistrate wrongly assumed that a person must show sexual tendencies by indecent assault or paedophilia in order for a SORA order to be granted. Her Honour said to the prosecutor:[33]
…as I said before, there’s nothing that – SORA is for people who are showing either sexual tendencies by indecent assaults, paedophilia. You know the standards …
[32](2013) 44 VR 229 (Redlich and Coghlan JJA and Dixon AJA) (‘Bowden’).
[33]MCV Transcript 27 July 2023, T4.
In Bowden, the Court of Appeal stated:
The inquiry under s 11(3) is directed to the future risk on release assessed by reference to what is presently known. Although the draftsperson employed the present tense - ‘poses’- so requiring a present day evaluation of the existence of the risk based upon known facts and circumstances, the judge must ultimately be satisfied that such risk as is found to exist or some lesser but sufficient risk will remain at the time of the prisoner’s releases.
We consider that to be the clear legislative intent. The court should not make a registration order in respect of an offender who has committed a Class 3 or Class 4 Offence unless there is no reasonable doubt that the offender poses (where the disposition is non-custodial) or will pose on release (where the offender is sentenced to imprisonment) a real risk to the sexual safety of one or more persons or of the community. Reading the subsection in this way does not give it an unnatural, incongruous, or unreasonable construction and produces a construction that is in conformity with the statutory scheme.[34]
[34]Ibid 238 [37]-[38].
Relying on other decisions, including Director of Public Prosecutions vCartwright,[35] the informant argued that the risk to sexual safety to which the SOR Act applies, extends beyond risks to bodily integrity and physical safety to psychological distress in observing an offender’s conduct of a sexual nature. In Cartwright, Priest JA, with the agreement of Weinberg JA and Beach JA), stated:[36]
…On its ordinary meaning, s 11(1) makes offences which are not classified as Class 1 or Class 2 offences (including Class 3 or 4 offences) subject to registration under the SORA. The power to do so is discretionary - the court ‘may order’ – and is subject to the court being satisfied, beyond reasonable doubt, that the relevant person ‘poses a risk to the sexual safety of one or more persons or of the community’. That interpretation is, in my view, buoyed by the terms of s 34 (4)(b) which, by their reference to any other offence’, support the contention that the reporting obligations of the Act may extend to offences not specifically falling within the class of offences provided for.
[35](2015) 45 VR 168 (‘Cartwright’).
[36]Ibid 174 [20].
The defendant relied on Blyss v The Magistrates’ Court of Victoria,[37] which summarised the effect of the authorities as follows:
The main purposes of registration appear to be protection of the community, reducing the likelihood of re-offending, and facilitating the investigation and prosecution of future offences. In my view, likelihood of re-offending refers to re-offending in the same or similar circumstances, and future offences refers to offences of the same or similar type. The Act does not aim to reduce the risk of registered sex offenders committing unrelated ‘non-sexual’ offences, such as drink driving. Nor does it aim to facilitate the investigation and prosecution of unrelated ‘non-sexual’ offences committed by registered sex offenders, such as drink driving.
Given the Act’s purposes concern re-offending, and the risk to sexual safety refers to the risk of re-offending, the initial offence that triggers the operation of s 11 must be related to the re-offending. The re-offending with which the Act is concerned is re-offending of a sexual nature, therefore the initial offending must also be of a sexual nature. If the initial offence were non-sexual, such as a plain vanilla drink driving offence, then re-offending would not be a concern of the Act, and the initial offence would not fall within the Act’s purposes.
It is unnecessary in this case to define the ‘outer limits’ of ‘an offence’ in s 11(1). In my view, it is sufficient to note that if re-offending in the same circumstances would fall within the Act’s purposes, then the initial offending qualifies as ‘an offence’ under s 11(1) (as long as it is not a Class 1 or Class 2 offence). An offence would also qualify as ‘an offence’ under s 11(1) if it harms the sexual safety of one or more persons or of the community, because a risk of committing that offence again in the future would be a risk to sexual safety.
[37][2016] VSC 548 [43]-[45] (Zammit J).
The informant submitted that the defendant’s offending for which he was sentenced, when viewed in the context of his past behaviour, established that he was a risk to the sexual safety of one or more persons or of the community within the meaning of s 11(3). The Magistrate described the test incorrectly and made a material error that affected her decision to strike out the SORA application.
The defendant argued that the Magistrate did not apply, and was not required to apply, the statutory test in s 11(3) of the Act as she was exercising a procedural power to determine whether the application should be adjourned and not whether to make an order under the Act. Secondly, she did not decide the SORA application, but expressed her ‘tentative view’ about it. The informant had flagged that further relevant evidence might be called.
The defendant also argued, that in any event, it would have been open to the Magistrate to find, as her Honour ‘tentatively indicated’, that the application was ‘bereft of evidence of a sexual nature’, given the trespass charges triggering the application were not of a sexual nature and that the charges of a sexual nature had been withdrawn.
Analysis of ground 6
The Magistrate described her comments about the informant’s SORA application on 24 July, that I have set out above, as her ‘tentative view’.
A tentative opinion is not the same as a concluded view. As the High Court stated in Johnson v Johnson:[38]
At the trial level, modern judges, responding to a need for more active case management, intervene in the conduct of cases to an extent that may surprise a person who came to court expecting a judge to remain, until the moment of pronouncement of judgment, as inscrutable as the Sphinx. In Vakauta v Kelly Brennan, Deane and Gaudron JJ, referring both to trial and appellate proceedings, spoke of “the dialogue between Bench and Bar which is so helpful in the identification of real issues and real problems in a particular case.” Judges, at trial or appellate level, who, in exchanges with counsel, express tentative views which reflect a certain tendency of mind, are not on that account alone to be taken to indicate prejudgment. Judges are not expected to wait until the end of a case before they start thinking about the issues, or to sit mute while evidence is advanced and arguments are presented. On the contrary, they will often form tentative opinions on matters in issue, and counsel are usually assisted by hearing those opinions, and being given an opportunity to deal with them.
[38]Johnson v Johnson (2000) 201 CLR 488, 493 [13].
Nevertheless, her Honour’s tentative comments did not reflect the terms of s 11(3) of the SORA or the two-stage test prescribed in Bowden. In addition, on 27 July, her Honour went further than expressing a tentative opinion and stated:[39]
[39]MCV Transcript 27 July 2023, T3-4.
HER HONOUR: And he is in a difficult set of circumstances. I’ve sentenced him. The acts that were alleged to be of a sexual nature were withdrawn.
PROSECUTOR: Yes, Your Honour.
HER HONOUR: So I struck those out. This is a fraught application at the moment, so I’m – it is bereft of evidence of a sexual nature.
PROSECUTOR: Yes. Your Honour. And there is evidence of a sexual nature but the informant is investigating.
HER HONOUR: Working on it. Well ---
PROSECUTOR: There is also ---
HER HONOUR: Once it’s done [Prosecutor] ---
PROSECUTOR: There is also a risk assessment ---
HER HONOUR: … the application can be made.
…
HER HONOUR: [Prosecutor], as I have said before, there’s nothing that – SORA is for people who are showing either sexual tendencies by indecent assaults, paedophilia. You know the standards --- .
In my respectful opinion, in these remarks, her Honour adopted an incorrect approach to the criteria in s 11(3) of the SORA and that was a reason why she decided to strike out the SORA application.
To make a SORA order under s 11, the Court must be satisfied beyond reasonable doubt that the defendant poses a risk to the sexual safety of one or more persons or of the community. In deciding whether to make an order, the Court may take into account any matter that it considers appropriate, which could include relevant previous conduct, the conduct on which the charges were based, and any risk assessment of the offender re-offending.
The Magistrate did not appear to consider whether the defendant posed a risk to the sexual safety of one or more persons or of the community. The incorrect statement of when a SORA order may be made appears to have been material to her Honour’s decision to strike out the informant’s SORA application
Ground 6 is established.
Ground 8 (paragraph 2(f) of the Plaintiff’s Claims): Taking into account an irrelevant consideration – availability of legal aid
Ground 8 states:
Further and/or in the alternative, the second defendant in striking out the application took into account an irrelevant consideration, namely that the first defendant was not the beneficiary of a grant of Legal Aid for the application.
The informant referred to the defendant’s opposition to his adjournment application on 27 July which was based on the contention that Legal Aid would not provide funding for defence counsel to appear at a further hearing. The Magistrate said that she did not want the defendant to be without a lawyer.[40]
[40]Ibid, T3.
The informant submitted that the availability of legal representation for the defendant would not change, regardless of whether an adjournment was granted, as the defendant would not have legally aided representation on any further day on which the SORA application was heard. Therefore, the availability of legally aided representation was an irrelevant consideration. However, the Magistrate took that issue into account in striking out the informant’s SORA application.
The defendant submitted that the non-availability of legal representation issue was only one matter that the Magistrate took into account. Her Honour also took into account that the prosecutor was seeking the indulgence of an adjournment and had not justified its grant. The informant did not have all the material he wanted to rely on and, therefore, was not ready to proceed.
Analysis of ground 8
The information about Legal Aid’s policies provided by the defendant suggested that he would not receive legal aid for the further hearing of any SORA application.
As I mentioned when considering ground 4, the Magistrate decided that the grant of an adjournment would prejudice the defendant as a result of the informant not being ready to proceed. The Magistrate was entitled to consider the impact of the adjournment on the likelihood of the defendant obtaining representation on any adjourned hearing date. I do not consider that the Magistrate erred in refusing the adjournment.
However, I do not consider that the possible non-availability of legal representation on future hearing days justified striking out the informant’s SORA application. I do consider that that possibility was one reason why her Honour struck out the SORA application. I consider, with respect, that her Honour erred in doing so. As I concluded when considering ground 4, the prosecutor sufficiently indicated that she wished to proceed with the informant’s SORA application and that arrangements had been made for the informant and two other police officers to attend Court at 2.00pm to give evidence in support of the SORA application.
Ground 8 is established.
Ground 9 (paragraph 2(f) and 2(h) of the Plaintiff’s Claims): Irrelevant consideration – the ability to bring another application
Ground 9 states:
Further and/or in the alternative, the second defendant in striking out the application erred by concluding that the plaintiff had a right to bring another application before the Court at a future point in time in a manner akin to an application under the Bail Act 1977 (Vic).
One reason given by the Magistrate for refusing the adjournment application and striking out the SORA application was that, if the informant obtained further material, he could make a second application. The Magistrate likened a SORA application to a bail application, and stated that in striking out the application, ‘… there is no harm in that at all.’[41]
[41]Ibid.
The informant submitted that the Magistrate erred in comparing a SORA application to a bail application as the SORA did not provide for second or more applications to be made. In addition, s 11(6) of the Act provided for a 45 day period in which to make a SORA application, and the informant might not have been to able bring a further application within that period.
The defendant argued that, following the striking out of the informant’s application, the informant could have made a fresh application within the 45 day period. The term ‘application’ in s 11(6) should be read as permitting further applications, because the singular ‘application’ includes the plural ‘applications’. That rule is contained in s 37(c) of the Interpretation of Legislation Act 1984. A second application could not be made if it would be an abuse of process.[42] However, the informant conceded that a second application could be made if the first application had been withdrawn by the prosecution or struck out without being adjudicated on.[43]
[42]See, for example, Racovalis v Rescom Mortgages Pty Ltd (2010) 28 VR 250.
[43]SCV Transcript, T28.
Analysis of ground 9
The SORA is silent on whether a second SORA application can be made. No specific provision is made for a second or more applications, unlike the position with bail applications.[44] While s 37(c) of the Interpretation of Legislation Act 1984 may apply, it is unclear whether the informant has a guaranteed right to make a further application. It might be argued that the short 45 day time period contained in s 11(6) of the SORA and the words ‘an application’ indicate that only one application can be made. These features may suggest that the legislative intent is that a SORA application should be resolved promptly and finally after a sentence is imposed.[45]
[44]See Bail Act 1977 s 18.
[45]Cf Carroll v Browne [2018] VSC 253 [47]-[48].
However, assuming that the Magistrate’s assumption that a second SORA application could be made under s 11(6) was correct, that possibility did not justify striking out the informant’s application before it was heard and determined. He was entitled to have his application decided. In addition, the informant might have suffered prejudice in having to bring a second application and obtain its listing before a Magistrate during the remaining 42 days of the application period.
I consider that the Magistrate struck out the application, at least in part, because she considered that a second SORA could be made. Her Honour took into account that the prosecutor wished to obtain further material, and that there was uncertainty whether legal representation would continue to be available if the application was adjourned. But I consider that the effect of the prosecutor’s submissions was that the informant wished to proceed with the application even without that further material.
A related argument advanced by the defendant was that, as judicial review remedies are discretionary, the informant should be denied relief because he had not pursued the available remedy of bringing a second application. The 45 day time limit allowed for SORA applications has now well expired, whereas on 27 July it still had 42 days to run.
I do not accept that submission by the defendant because the informant was entitled to have his SORA application heard and determined and not be sent away to make another application within a short period of time.
Ground 9 is established.
Paragraph 2(g) of the Plaintiff’s Claims - noting on the court record that the application was struck out due to being withdrawn when it was not
The informant contended that the certified extract of the Magistrates’ Court order of 27 July, which records that the SORA application was ‘struck out - withdrawn’ was erroneous because he had not withdrawn the application. The Magistrate struck out the application on her own motion with neither the prosecution nor the defendant having sought that order. The order therefore contained an error of law on the face of the record.
The defendant conceded that the informant did not withdraw his application, but contended that the misstatement in the order did not contain a material error as was required to obtain judicial review remedies.[46] It was within the Magistrate’s procedural powers to refuse the adjournment application and strike out the application. The word ‘withdrawn’ in the order was intended to convey to any future hearing, that the first application had not been determined on the merits. That might have assisted the informant if he brought another SORA application. The addition of the word ‘withdrawn’ was not material to the decision of the Magistrate to strike out the application.
[46]LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 98 ALJR 610.
Analysis of paragraph 2(g) of the Plaintiff’s Claims
In my opinion, the Magistrate’s order contained an error of law in stating that the SORA application was withdrawn. The informant did not withdraw his application. Court orders and records should accurately record how an application was determined. The question of whether the SORA application was withdrawn or struck out may well have been relevant if the informant made a second SORA application.
Paragraph 2(g) is established.
Conclusion
The informant has established grounds 4, 6, 8, 9 and paragraph 2(g) (of the Plaintiff’s Claims). The errors contained in those grounds were material to the Magistrate’s decision to strike out the SORA application.
I will set aside the orders made on 27 July 2023 recording the SORA application as having been struck out and withdrawn and remit the plaintiff’s SORA application to the Magistrates’ Court to be heard and determined by a different Magistrate.
The effect of my decision is that the informant’s SORA application must be heard and determined in accordance with the provisions of the SORA. My decision should not be taken as indicating what the outcome of that hearing and determination should be.
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