Kostiuk v KH (a pseudonym) - [2024] VSC 586

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— Whether informant could make a second application for same order — Error in order recording that the application was withdrawn when application struck out — Sex Offenders Registration Act 2004 s 11; Magistrates’ Court Act 1989 s 136.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- Withdrawn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…

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 Kostiuk v KH (a pseudonym)

Details

AGLC: Kostiuk v KH (a pseudonym) [2024] VSC 586
Case: [2024] VSC 586
Decision Date: 23 September 2024

CaseChat Overview and Summary

The case of Kostiuk v KH involved an application under the Sex Offenders Registration Act 2004 for an order that KH comply with reporting obligations. The application was brought by the prosecutor, seeking an adjournment to obtain further evidence. The magistrate refused the adjournment and subsequently struck out the application. KH appealed to the court, arguing that the magistrate had denied procedural fairness, had made remarks in sentencing that established apprehended bias, and had applied the wrong statutory test. The prosecutor argued that KH would likely not have legally aided representation if the matter were adjourned, and that the informant could not make a second application for the same order.

The court considered whether the magistrate had erred by refusing the adjournment, which would have denied KH procedural fairness. The court found that the magistrate's sentencing remarks did not establish apprehended bias. It was held that the magistrate applied the correct statutory test and the informant could not make a second application for the same order. The court also noted an error in the order recording that the application was withdrawn when it was struck out.

The court dismissed the appeal. The court found that the magistrate had not erred in refusing the adjournment, as KH would likely not have legal representation. The court held that the magistrate had not applied the wrong statutory test, and that the informant could not make a second application for the same order. The court noted the error in the order recording that the application was withdrawn when it was struck out.

The final orders of the court were that the appeal be dismissed and that costs be awarded to the prosecutor.

Orders