Montana v Stewart (Ruling)

[2025] VCC 447

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

Case No. AP-23-1039

ANTONIA MONTANA	Appellant
v
ASHLEIGH STEWART	Respondent

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JUDGE:	HER HONOUR JUDGE HOGAN
WHERE HELD:	Melbourne
DATE OF HEARING:	10 April 2025
DATE OF RULING:	14 April 2025
CASE MAY BE CITED AS:	Montana v Stewart (Ruling)
MEDIUM NEUTRAL CITATION:	[2025] VCC 447

RULING
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Subject:Application for costs made by the appellant on day 13 of the hearing of her appeal from the Magistrates’ Court following her abandonment of such appeal on that day 

Catchwords:              

Legislation Cited:      

Cases Cited:

Ruling:  Application for costs dismissed

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr G Silbert KC with Mr D Dealehr	Defteros Lawyers
For the Respondent	Ms K Crennan	Solicitor for the Office of Public Prosecutions

HER HONOUR:

1I have presided over an appeal by Antonia Montana (“the Appellant”) from orders made at Moorabbin Magistrates’ Court on 10 August 2023.  On that date, the appellant was convicted of two charges: Charge 1, that between 27 June and 15 August 2021 she used a carriage service to harass the complainant, and Charge 2, that from 27 June to 15 August 2021 she committed an indictable offence, using a carriage service to harass whilst on bail. 

2After a hearing before me of 12 sitting days, on the morning of the thirteenth day the appellant abandoned her appeal.  Nevertheless, she sought an order for costs against the respondent.

3The subject matter of the charges involved harassing text messages and emails sent to the iPhone of the complainant, the CEO of an insurance company at which the appellant had been employed. 

4In the Magistrates’ Court, text messages between the dates of offending and in the months leading up to the offending had been set out in what is called “the Kroll Report”.  The Kroll Report had been tendered into evidence in the Magistrates’ Court without objection.  Once the appellant appealed to the County Court, there were one or more mentions held in this court before it came before me for the hearing.  There had also been some days of pre-trial argument before His Honour Judge Georgiou of this court concerning the validity of subpoenas issued on behalf of the appellant and the extent of compliance with such subpoenas.  At no time prior to the commencement of the hearing before me had it been flagged by the appellant that she would object to the use of the Kroll Report, or that she wanted to forensically examine the complainant’s iPhone before the hearing of the appeal.

5At the hearing before me, the appellant’s counsel flagged that she would argue that the Kroll Report was inadmissible.  Without any ruling being made on this issue, the matter then commenced by the prosecution calling the complainant as a witness.  He referred to the text messages forming the bases of the charges, and stated that such text messages remained stored on his iPhone.  He volunteered for his iPhone to be inspected under supervision by the appellant’s counsel.  This opportunity was not taken up by the appellant’s counsel.

6Mr Silbert of senior counsel for the appellant argued that the evidence relating to the messages on the phone was “fresh evidence”.  He initially asked the court order to Victoria Police to forensically examine the complainant’s iPhone.  However, Ms Crennan, for the prosecution, volunteered to have the relevant division of Victoria Police undertake such an examination in order to extract from it the relevant messages pertaining to the charges.  Mr Silbert then indicated that, in addition to this, the appellant required her own expert to forensically examine the complainant’s iPhone.  As I understand it, the request by the appellant for forensic examination of the complainant’s iPhone was based, not upon a contention that the text messages relied upon by the prosecution during the period of offending were different from than those in the Kroll Report and identified by the complainant, but, rather, upon an allegation by the appellant that some text messages, or parts thereof, in the period leading up to the alleged offending had been deleted.  This allegation was apparently made for the first time only after the hearing before me had commenced.

7Whilst the process of analysis by Victoria Police of the complainant’s iPhone was being undertaken, the complainant was stood down from giving evidence, and the hearing continued, with other prosecution witnesses being called to give their evidence and undergo cross-examination.

8The appellant’s application for costs appears to be on two bases:

(i)that I am at fault in the way the trial was conducted;

(ii)that the prosecution is at fault for some sort of failure to disclose relevant information and, in particular, the alleged “fresh evidence” by way of the actual text messages stored on the complainant’s iPhone.

9In oral submissions on Thursday, 10 April 2025, the appellant argued that I was at fault in having reprimanded the appellant for using her mobile phone in court whilst the court was in session; and, again, reprimanding the appellant whilst she was appearing at her appeal hearing from a remote location using Zoom technology and had sent a message on that technology directly to one of my associates concerning a matter which was the subject of evidence being put to a witness then being cross-examined by Mr Dealehr, junior counsel to Mr Silbert.

10In written submissions on Friday, 11 April 2025,[1] the appellant changed her attack upon me and asserted that I had “failed to inform myself and failed to properly consider his Honour Judge Georgiou’s order in regard to requiring the complainant to attend court on the appeal to give evidence in person”.  There were other new criticisms of me, which had not been articulated the previous day by Mr Silbert.  They are set out in the appellant’s written submissions.

[1]        MFI-1 on the appellant’s application for costs.

11It may come as no surprise that I do not accept any of these criticisms and I do not accept the factual bases of them.  However, the short point is that, even if such criticisms were valid, I cannot see how they can support an application for me to impose an order for costs on the respondent.

12The criticisms of the respondent can be conveniently summarised as a claim by the appellant that the evidence against her came as a surprise.  In addition, that it was unfair for the prosecution to adduce the evidence of the precise language of the texts via the complainant producing his iPhone, when that language had been established in the Magistrates’ Court by the submission of the Kroll Report now said on behalf of the appellant to be inadmissible (albeit, as I have said, tendered in the Magistrates’ Court without objection).

13Following the extraction of the text messages relevant to the charges by a member of Victoria Police Cybercrime Squad, a copy of such extraction was provided in a portable case to the appellant’s solicitor so that an expert retained by the appellant could analyse the same.  Ms Crennan advised the court that a download of such data produced text messages which do not materially differ from those contained in the Kroll Report.  Nor did such download reveal any of the alleged deleted messages, or parts of messages, which the appellant claimed represented screenshots from her mobile phone (albeit that time and date stamps are very largely handwritten, rather than in electronic form, in the document containing such screenshots produced by the appellant).[2]

[2]Exhibit “1” on the appellant’s application for costs

14Mr Silbert, in oral submissions, conceded that the data downloaded from the extraction by Victoria Police did “mirror” what had been relied upon by the prosecution to support the charges against the appellant.  However, he asserted that the appellant’s expert had stated that he could not provide a report of analysis without having physical access to the complainant’s iPhone.  This was said to be necessary, even though a statement from the Cybercrime Squad officer as to what process had been undertaken by him in performing the extraction of the relevant data had been provided to the appellant and to the court.[3]  No statement from any expert retained by the appellant as to the necessity that he have physical access to the complaint’s iPhone or, indeed, challenging the validity of the extraction process said to have been undertaken by the Cybercrime Squad officer was provided to the court, or even sought to be obtained.

[3]Statement of Detective Acting Sergeant Craig Sutherland dated 8 April 2025, subsequently marked Exhibit “B” on the application for costs by the appellant

15Given that the complainant is the CEO of an Australian operation of a large international insurance company and that the iPhone in question is his work phone and is a crucial communication device for his work as a CEO, the court considered it unreasonable, in all of the circumstances to which I have just referred, to require the complainant to surrender his phone to an expert retained by the appellant.  This would have involved him being deprived of the use of his phone for, at least, a further two days beyond the two days during which he had been without it during the Cybercrime Squad extraction process.

16I reject the appellant’s assertion that she was taken by surprise by the allegedly “fresh evidence” comprising the actual text messages stored in the complainant’s iPhone.  The details of the text messages contained within the Kroll Report are not materially different from those available to be seen in the complainant’s iPhone and those appearing in the download of data following the extraction process conducted by the Cybercrime Squad.  At all relevant times, prior to the hearing in the Magistrates’ Court, and well prior to the hearing before me in this court, the appellant had been appraised of the date, time and content of the text messages relied upon by the prosecution in support of the charges, as well as these same details pertaining to text messages leading up to the dates of offending specified in charge 1.

17It is difficult to understand how it could be said that the appellant had been prejudiced by the manner in which the appeal has been conducted.  I reject the appellant’s assertion that she has been taken by surprise or that there has been any failure to accord procedural fairness to the appellant.

18The appellant withdrew her appeal on the thirteenth day of the hearing.  In these circumstances, she has not been successful in her appeal, which is the usual circumstance which would found an entitlement to costs.

19I have rejected the alternative bases argued on behalf of the appellant in support of her application.  I would add that the respondent has filed written submissions in response to the appellant’s submissions.  They are dated 11 April 2025.[4]  I accept the accuracy of those submissions, both as to the facts and the law.

[4][4]        MFI-A on the appellant’s application for costs.

20The application for costs by the appellant has no merit. 

21The respondent has not sought costs against the appellant.

22The appeal is now abandoned by the appellant.

23The appellant’s application for costs is dismissed.