Montana v Iliadis & Anor

[2008] VSC 131

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 7106 of 2007

PETER JAKE MONTANA

Plaintiff

v

ILIAS ILIADIS
AND
COUNTY COURT OF VICTORIA

Firstnamed Defendant

Secondnamed Defendant

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JUDGE:	CURTAIN J
WHERE HELD:	Melbourne
DATE OF HEARING:	15 April 2008
DATE OF JUDGMENT:	22 April 2008
CASE MAY BE CITED AS:	Montana v Iliadis & Anor
MEDIUM NEUTRAL CITATION:	[2008] VSC 131

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CATCHWORDS:  Order 56 review of County Court appeal against sentence, alleging jurisdictional error – appellant consented to summary jurisdiction of Magistrate’s Court – no jurisdictional error found.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	In person
For the Firstnamed Defendant	Mr Gyorffy	Office of Public Prosecutions.
For the Secondnamed Defendant	No Appearance

HER HONOUR:

1. Peter Jake Montana was charged with stalking in breach of s 21A(1) of the Crimes Act1958.  On 7 December 2006 he appeared before a Magistrate in the Melbourne Magistrates’ Court.  Mr Montana was legally represented and he consented to that court exercising summary jurisdiction.  After a contested hearing, Mr Montana was found guilty, convicted and placed on a 12 month community based order with conditions.

1. By notice dated 14 December 2006, Mr Montana appealed the Magistrate’s decision pursuant to s 83 of the Magistrates’ Court Act 1989.  The general ground of appeal was “that the appellant is not guilty”.

1. The matter came on for hearing in the County Court before her Honour Judge Wilmoth on 17 May 2007.  On that occasion, Mr Montana represented himself.  Judge Wilmoth advised him of the nature of the appeals and the course available to him and Mr Montana elected to appeal against sentence only.  Although, on occasions throughout the hearing, Mr Montana maintained that he was not guilty, he, nonetheless, admitted that his conduct had placed the victim in fear.  He conceded that a summary of the evidence was accurate (although at a later point he appeared to dispute this and he admitted his prior matters).  The nub of the appeal was whether a conviction should be recorded.  After hearing submissions from both parties and taking time to consider the matter, her Honour fined Mr Montana $500 and recorded a conviction.

1. Mr Montana now seeks by originating summons an Order 56 judicial review “seeking a full rehearing and review of the matter before a jury to determine innocence or guilt and if found guilty by a jury an order in the nature of certiorari to uplift and quash the conviction imposed by the lower court”.  The amended originating summons also sought the prosecution provide a copy of R O’s[1] victim impact statement with an attached psychologist’s report and R O’s academic transcript and “advice of graduation”.

   [1]I propose to identify the complainant by her initials.

1. Mr Montana, who represented himself, made oral submissions and relied upon affidavits and exhibits thereto sworn by him on 6 July 2007, 25 July 2007, 15 August 2007 and 20 October 2007.  Mr Montana also tendered a report by a psychologist, Dr Boris Goloub, dated 21 March 2008.

1. Mr Montana stated that he understood the Order 56 review was a review of the entire proceedings in the lower court.  He maintained that he had been denied natural justice, that the law had not been applied to the facts, that R O had committed perjury, that the police by entrapping him had engaged in unethical behaviour, that he had been dissuaded from giving sworn evidence at the appeal and that he therefore gave unsworn evidence which carried less weight and he had been denied the opportunity of calling a witness.

1. Mr Gyorffy, who appeared on behalf of the firstnamed defendant, submitted that the Order 56 review lies only against the order of Judge Wilmoth and that, in this case, there was no jurisdictional error or procedural unfairness amounting to a denial of justice and as the relief sought by Mr Montana did not arise out of the decision of Judge Wilmoth therefore this court had no jurisdiction to grant the application.

1. The relief sought is in the nature of certiorari.  The relevant authority dealing with certiorari is Craig v The State of South Australia.[2]  The High Court said:[3]

Where available, certiorari is a process by which a superior court, in the exercise of original jurisdiction, supervises the acts of an inferior court or other tribunal.  It is not an appellate procedure enabling either a general review of the order or decision of the inferior court or tribunal or a substitution of the order or decision which the superior court thinks should have been made.  Where the writ runs it merely enables the quashing of the impugned order or decision upon one or more of a number of distinct established grounds, most importantly jurisdictional error, failure to observe some applicable requirement of procedural fairness, fraud and “error of law on the face of the record.”

Where the writ is sought on the ground of jurisdictional error, breach of procedural fairness or fraud, the superior court entertaining an application for certiorari can, subject to applicable procedural and evidentiary rules, take account of any relevant material placed before it.  In contrast, where relief is sought on the ground of error of law on the face of the record, the superior court is restricted to “record” of the inferior court or tribunal and the writ will enable the quashing of the impugned order or decision only on the ground that it is affected by some error of law which is disclosed by that record.

[2](1995) 184 CLR 163.

[3]At page 175-176.

1. The Order 56 review here lies against the order of her Honour Judge Wilmoth imposing a conviction and financial penalty.  Clearly these proceedings are not, as Mr Montana mistakenly believed, a general review of all of the proceedings in the lower court.  To be successful on this application,  Mr Montana must establish any one of the following:  jurisdictional error; failure to observe some applicable requirement of procedural fairness;  fraud or error of law on the face of the record.  Even if Mr Montana were able to establish such a ground this court cannot order the relief he has sought, which is a retrial by jury.

Jurisdictional Error

1. Stalking pursuant to s 21A of the Crimes Act is an indictable offence. Section 53 of the Magistrates’ Court Act permits certain indictable offences to be heard summarily provided the court is of the opinion that the charge is appropriate to be heard summarily and the defendant consents to a summary hearing.  Stalking is an indictable offence which may be heard summarily if the pre-conditions are met.[4]  Mr Montana, when legally represented, consented to the Magistrates’ Court exercising summary jurisdiction.

   [4]Section 53(1)(A)(a) of the Magistrates’ Court Act.

1. Mr Montana, upon being convicted, appealed to the County Court pursuant to s 83 of the Magistrates’ Court Act. If he wished to challenge the decision of the Magistrate on a question of law it was open to him to appeal to the Supreme Court pursuant to s 92 of the Magistrates’ Court Act, but he could not do both.[5]

   [5]Section 83(2) of the Magistrates’ Court Act.

1. By prosecuting his appeal in the County Court, Mr Montana was again consenting to that court hearing the matter summarily.  He was entitled to a hearing de novo in the County Court exercising summary jurisdiction.  It follows that the County Court had the jurisdiction to hear the matter and therefore no jurisdictional error has been established.  Had jurisdictional error been established this court could only quash the order of Judge Wilmoth and remit the matter to the County Court.  The relief sought and its consequent orders are not within the power of this court to grant.

1. As to the further orders which Mr Montana’s originating motion seeks, if it be put that the exercise of her Honour’s sentencing discretion in the absence of such documents amounts to a reviewable error that ground is also not made out.  The review of the transcript of the appeal before Judge Wilmoth discloses that Mr Montana did not seek to place R O’s academic transcripts and records before the court.  The victim impact statement was not before the court because it could not be located but the fact of making one was before her Honour.  The summary of evidence contained a brief statement from the victim as to the impact of Mr Montana’s conduct upon her and Mr Montana conceded in his submissions that his conduct placed her in fear.  Her Honour also had regard to material that Mr Montana placed before the court which included a document entitled “Critical Analysis of RO’s Statement”.

1. Her Honour was well placed to assess the impact of Mr Montana’s conduct upon the victim and to give such impact the appropriate weight.  The impact of the offending conduct upon the victim is only one of many matters which are to be considered by a sentencing judge in the exercise of his or her discretion.  Indeed, her Honour, in imposing a fine, imposed a lesser penalty than that previously imposed by the Magistrate[6].  It cannot be said in these circumstances that there was a failure to have regard to factors which might mitigate the offending conduct and the impact upon the victim.  Accordingly, no reviewable error has been demonstrated.  Although what I have said is sufficient to dispose of the matter, as Mr Montana is unrepresented, I will seek to address the matters he has raised in his oral submissions.

   [6]See s.7(e)and s.7(f) of the Sentencing Act 1991.

1. The matter proceeded in the County Court as an appeal against sentence only.  Mr Montana did not proceed with his appeal against conviction.  He consented to the summary of evidence and he admitted his prior court appearances.  The nature of the appeal process was explained to him by her Honour and the courses open to him and it was in these circumstances that he elected to proceed in respect of sentence appeal only.  In those circumstances he cannot now be heard to complain that R O has perjured herself or that the police acted inappropriately or that the law has not been applied to the facts, matters which could have been challenged on an appeal against conviction.  Likewise, although Mr Montana maintains his innocence and is adamant that he is not guilty, those comments must be placed in the context of his election not to prosecute his appeal against conviction and his concession to Judge Wilmoth that his conduct placed the complainant in fear.

1. The evidence sought to be led from the witness, Mr De Hann, a Justice of the Peace, who Mr Montana said would say that he personally did not find Mr Montana’s letters threatening or offensive was irrelevant whether it be on a conviction and/or sentence appeal.  Her Honour did not prevent Mr Montana from calling Mr De Hann to give character evidence.  Her Honour stated she would have no objection to hearing from him,[7] but the matter was not taken further.

   [7]Transcript page 21.

1. Mr Montana did not seek to give sworn evidence on the appeal but, nonetheless, over objection from the prosecution, her Honour had regard to all of the material placed before her by Mr Montana including a report of Mr Bernard Healey dated 11 May 2006 and Mr Montana was given every opportunity to address her Honour on relevant matters.

1. It appears from a reading of the transcript that her Honour took into account all matters relevant to the exercise of her sentencing discretion. Her Honour also had regard to the provisions of s 8 of the Sentencing Act which addresses the particular circumstances to be considered in exercising the discretion whether or not to record a conviction, and Mr Montana’s previous criminal history which dated back to 1987, which included five non-conviction dispositions including one for the offence of stalking.  It is apparent from her Honour’s reasons for sentence that she took matters personal to Mr Montana into account including his ill-health and the effect of a conviction upon his career and his ability to join relevant professional associations.  In short, it cannot be said that her Honour failed to take into account matters which she ought to or took into account matters which she ought not in the exercise of her discretion to impose the sentence that she did.

1. Mr Montana in his submissions before me made an impassioned plea about the consequences of a conviction for him and prayed upon the court to set the conviction aside.  While I appreciate that Mr Montana is greatly aggrieved by the recording of a conviction against him and I accept that the consequences to him of a conviction may well be serious, nonetheless, the court has no power to simply substitute the exercise of one judge’s discretion with that of another.

1. If Mr Montana wanted to challenge the jurisdiction of the Magistrates’ Court to hear the charge in the first instance, it may be that he could have issued an originating summons seeking an Order 56 review of that court’s decision to exercise summary jurisdiction.  However, as he was legally represented in the Magistrates’ Court, gave his consent to the exercise of summary jurisdiction, contested the matter and continued to give his consent to summary jurisdiction by instituting an appeal to the County Court, in the absence of any material change in those circumstances it is unlikely that such relief would be granted.[8]

   [8]R v Birmingham Justices; Ex parteHodgson [1985] 2 WLR 630; R v Newham Juvenile Court; Ex parte F (a minor) [1986] 1 WLR 939.

1. Accordingly, the application is dismissed.