JUDGE:	John Dixon J
WHERE HELD:	Melbourne
DATE OF HEARING:	3 October 2019
DATE OF JUDGMENT:	18 November 2019
CASE MAY BE CITED AS:	Makeham v Sheppard
MEDIUM NEUTRAL CITATION:	[2019] VSC 749

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ADMINSITRATIVE LAW – Judicial review – Appeal of decision of Magistrates’ Court – Indecent act with a child under 16 – Whether magistrate failed to direct herself in accordance with Jury Directions Act 2015 (Vic) – Whether magistrates must articulate consideration of requested direction in reasons – No such requirement - Jury Directions Act 2015 (Vic), ss 4A.

ADMINSITRATIVE LAW – Judicial review – Appeal of decision of Magistrates’ Court – Adequacy of reasons – Necessary detail required in magistrate’s reasons in circumstances where de novo hearing available on appeal – Perkins vCounty Court of Victoria (2000) 2 VR 246 considered - Criminal Procedure Act2009 (Vic) ss 254, 272, 273.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr K McDonald	Berwick Legal
For the Defendant	Dr J Harkess	John Cain, Solicitor for Public Prosecutions

TABLE OF CONTENTS

Introduction......................................................................................................................................... 1

Background circumstances............................................................................................................... 1

Proceedings before the magistrate.................................................................................................. 2

Relevant legislation........................................................................................................................... 6

Appellant’s submissions................................................................................................................. 10

Respondent’s submissions............................................................................................................. 16

Conclusions....................................................................................................................................... 18

HIS HONOUR:

Introduction

On the 26 October 2018, the appellant was convicted by the Magistrates’ Court of Victoria of one charge of committing an indecent act with a child under 16, contrary to s 47(1) of the Crimes Act 1958 (Vic).[1] The appellant was sentenced to a community corrections order for 18 months, with conditions that he perform 200 hours of community work and undergo assessment, treatment and rehabilitation as directed.
[1]This was the applicable statutory provision at the time of the offending, but the offence of “indecent act with a child under sixteen” was repealed by s 16 of the Crimes Amendment (Sexual Offences) Act 2016 (Vic) and replaced with the offence of “sexual assault of a child under the age of 16”, now found in s 49D of the Crimes Act.

The appellant challenges the final orders of the magistrate, pursuant to section 272(1) of the Criminal Procedure Act2009 (Vic), on four grounds:

(a) the magistrate erred in law by failing to direct herself as required, either adequately or at all (ground one);

(b) the magistrate erred in law by failing to give adequate reasons for her decision (ground two);

(c) the magistrate erred in law by denying the appellant procedural fairness when refusing to allow his counsel to seek adequate reasons for her decision (ground three); and

(d) the findings of the magistrate were unsafe and unsatisfactory (ground four).

Background circumstances

The victim was a friend of the appellant’s daughter. The prosecution’s case was that the victim slept over at the appellant’s house on the evening of 4 to 5 March 2017, with…

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 Makeham v Sheppard

Details

AGLC: Makeham v Sheppard [2019] VSC 749
Case: [2019] VSC 749
Decision Date: 18 November 2019

CaseChat Overview and Summary

The case of Makeham v Sheppard involves an appeal against a decision made by the Magistrates’ Court of Victoria, which convicted the appellant of committing an indecent act with a child under the age of 16. The appellant contested the decision, asserting that the magistrate erred in failing to adequately consider and articulate the requested direction under the Jury Directions Act 2015 (Vic). The appellant argued that the magistrate's failure to provide clear reasons for her decision rendered the outcome unjust and that the magistrate must explicitly state her consideration of the requested direction in her reasons.

The primary legal issues before the court were whether the magistrate was required to articulate the consideration of a requested direction in her reasons and whether the magistrate’s reasons were adequate given the availability of a de novo hearing on appeal. The court had to determine whether the Jury Directions Act 2015 (Vic) imposed a requirement for magistrates to explicitly address the consideration of a requested direction in their reasons and whether the absence of such articulation constituted a failure to properly direct themselves under the Act. Additionally, the court considered whether the adequacy of reasons provided by the magistrate was sufficient, particularly in light of the potential for a de novo hearing on appeal.

The court held that there was no requirement under the Jury Directions Act 2015 (Vic) for a magistrate to explicitly articulate the consideration of a requested direction in their reasons. The court found that the Act does not mandate such articulation and that the absence of it did not necessarily indicate a failure to properly direct themselves. The court further observed that the adequacy of reasons provided by the magistrate was sufficient in the circumstances, given the availability of a de novo hearing on appeal. The court relied on the case of Perkins v County Court of Victoria to support its conclusion that the magistrate's reasons need not include every possible detail, particularly where a de novo hearing is available on appeal.

In light of the above, the appeal was dismissed. The court found that the magistrate's decision was not flawed due to the absence of explicit articulation of the consideration of the requested direction in the reasons, and the reasons provided were adequate in the context of the appeal process. The court concluded that the magistrate's decision was sound, and the appeal was without merit.

Orders