Rees v County Court

[2011] VSC 67

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 04748 of 2009

MARK JOHN REES	Plaintiff
v
COUNTY COURT & ORS	Defendants

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JUDGE:	CAVANOUGH J
WHERE HELD:	Melbourne
DATE OF HEARING:	14 February 2011
DATE OF JUDGMENT:	11 March 2011
CASE MAY BE CITED AS:	Rees v County Court
MEDIUM NEUTRAL CITATION:	[2011] VSC 67	First Revision:  16 March 2011

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ADMINISTRATIVE LAW – Judicial review – Application for certiorari – Alleged jurisdictional error – Appeal to County Court from Magistrates’ Court – Plaintiff convicted of unlawful possession – Observations as to whether deficient fact-finding by courts of limited jurisdiction in criminal proceedings can be jurisdictional error – Power to review assumed – No jurisdictional error – Application dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr J Burnside QC and Mr M Albert	Wisewould Mahony
For the Second Defendant	Dr S McNicol	Office of Public Prosecutions

HIS HONOUR:

Overview

1. In this application for judicial review of an order made by the County Court in an appeal from the Magistrates’ Court in a criminal proceeding, important and difficult legal issues have been raised about the extent to which, if at all, deficient fact finding by inferior courts in ordinary summary criminal proceedings in Victoria might amount to jurisdictional error.  However the plaintiff has not made out the deficiencies he alleges; and the legal issues have not been fully argued.  Accordingly it is neither necessary nor appropriate to express concluded views on the legal issues.   

The proceedings below and the application for judicial review

1. The plaintiff, Mr Mark Rees, was charged by Senior Constable Skeet, the second defendant, that on 23 April 2007 he did, without lawful excuse, have in his possession articles, namely spray paint cans, bolt cutters, disposable gloves and a respirator, with the purpose of using them to damage property belonging to another person, contrary to s 199 of the Crimes Act 1958. He was convicted of this offence in the Magistrates’ Court and was sentenced. He appealed against the conviction and sentence to the County Court pursuant to s 83 of the Magistrates’ Court Act 1989 as then in force (“the Act”).  In accordance with ss 85 and 86 of the Act, the matter came on for a de novo hearing before His Honour Judge Duggan on 17 December 2008.  Mr Rees was convicted afresh and was sentenced to 3 months’ imprisonment to be served by way of an intensive corrections order.  There was no avenue of appeal from that conviction.[1]

   [1]Appeal is a creature of statute.  No statutory provision provides for any further appeal.

1. Mr Rees now seeks an order in the nature of certiorari under Order 56 of the Supreme Court (General Civil Procedure) Rules 2005 to quash the orders made by Judge Duggan.  In his amended originating motion, which was filed at the hearing before me by leave, Mr Rees relies on two grounds, expressed as follows:

“1.The finding of His Honour Judge Duggan that the Plaintiff…