Lambrou v Smith - [2019] VSC 254

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

JUDICIAL REVIEW AND APPEALS LIST

S ECI 2018 02948

EMMANUEL GEORGE LAMBROU	Plaintiff
v
MICHELLE KATHLEEN SMITH, OF VICTORIA POLICE	First Defendant
and
MAGISTRATES COURT OF VICTORIA	Second Defendant

---

JUDGE:	CAMERON J
WHERE HELD:	Melbourne
DATE OF HEARING:	1 April 2019
DATE OF JUDGMENT:	17 April 2019
CASE MAY BE CITED AS:	Lambrou v Smith & anor
MEDIUM NEUTRAL CITATION:	[2019] VSC 254

---

JUDICIAL REVIEW – Application to issue a witness summons for production of documents in criminal proceeding – handwritten statements of complainant and other witnesses – Documents required for forensic testing – Whether there exists a legitimate forensic purpose for testing documents – Whether there exists a reasonable possibility that testing documents may assist accused’s defence – Magistrates’ Court Act 1989 ss 43, 44 considered - Alister v R (1984) 154 CLR 404; R v Saleam (1989) 16 NSWLR 14; Craig v South Australia (1995) 184 CLR 163; R v Mokbel (Ruling No 1) [2005] VSC 410; Ragg v Magistrates’ Court of Victoria (2008) 18 VR 300; Commissioner of AFP v Magistrates’ Court of Victoria [2011] VSC 3 referred to

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr E G Lambrou, in person	-
For the Defendant	Mr G Barr	Office of Public Prosecutions
For the second defendant	No appearance	-

HER HONOUR:

What is this case about?

This case concerns an application by the plaintiff, Mr Emmanuel Lambrou, for judicial review of a magistrate’s decision. The decision concerned the production of documents which Mr Lambrou says are relevant to his defence to criminal charges laid against him.

The documents in question are original handwritten statements of the complainant and his children. Mr Lambrou asks that the documents be released to him for the purpose of forensic testing to determine whether they were fraudulently obtained by Victoria Police.

Background

Mr Lambrou stands charged with unlawful assault and making a threat to kill following an altercation with his neighbour, the complainant, which took place on 3 January 2016. Mr Lambrou was charged on 21 November 2016, at which time a preliminary brief was compiled by the informant, the first defendant, and served upon him. The preliminary brief included copies of:

(a) a handwritten statement of the complainant on Victoria Police Form 502, which omitted the last page containing the date and jurat;

(b) typed, signed and sworn statements of the complainant dated 4 May 2016 and 4 August 2016; and

(c) typed, signed and sworn statements of each of the complainant’s three children, dated 8 November 2016.

Following several adjournments the matter was listed for hearing before the Magistrates’ Court on 22 October 2018. On that day Mr Lambrou elected to have the charges against him transferred to the committal stream of the County Court and the matter was listed for a filing hearing on 23 October 2018. At that time the conduct of the prosecution passed from the…

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 Lambrou v Smith

Details

AGLC: Lambrou v Smith [2019] VSC 254
Case: [2019] VSC 254
Decision Date: 17 April 2019

CaseChat Overview and Summary

The case of Lambrou v Smith involved the applicant, Lambrou, seeking to issue a witness summons for the production of certain documents in a criminal proceeding. The documents in question were handwritten statements made by the complainant and other witnesses. The application was heard in the Supreme Court of Victoria. The primary issue before the court was whether there was a legitimate forensic purpose for testing the documents and whether there existed a reasonable possibility that such testing might assist the accused's defence.

The court considered the relevant provisions of the Magistrates' Court Act 1989, specifically sections 43 and 44, which pertain to the production of documents in criminal proceedings. The court also examined previous cases such as Alister v R, R v Saleam, Craig v South Australia, R v Mokbel (Ruling No 1), Ragg v Magistrates’ Court of Victoria, and Commissioner of AFP v Magistrates’ Court of Victoria. These cases provided guidance on the criteria for determining the admissibility of forensic evidence. The court determined that a legitimate forensic purpose existed if the testing could provide evidence that might be relevant to the case, and that there must be a reasonable possibility that the results of the testing would assist the defence.

After considering the evidence and arguments presented, the court concluded that the applicant had not demonstrated a legitimate forensic purpose for testing the documents, nor had there been a reasonable possibility that the testing would assist the defence. Consequently, the application for a witness summons was dismissed. The court emphasised the need for a clear and compelling forensic purpose when requesting such testing, particularly in criminal proceedings where the rights of the accused must be safeguarded.

Orders