Rees v County Court

Case [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…

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Rees v County Court [2011] VSC 67
Case
[2011] VSC 67
Decision Date

CaseChat Overview and Summary

The plaintiff sought judicial review of a decision by the County Court, which had dismissed an appeal from a conviction by the Magistrates’ Court. The plaintiff had been convicted of unlawful possession of a firearm and sought to overturn the conviction on the basis of alleged jurisdictional error by the Magistrates’ Court. The appeal to the County Court was dismissed, and the plaintiff sought a writ of certiorari to quash the decision of the County Court.

The central issue before the court was whether the County Court had jurisdiction to review the Magistrates’ Court’s determinations of fact. The plaintiff argued that the Magistrates’ Court had made a jurisdictional error by failing to properly consider the evidence and reach a conclusion that was supported by the evidence. The court was required to determine whether the Magistrates’ Court’s deficiencies in fact-finding could be considered a jurisdictional error that would permit review by the County Court.

The court found that the County Court did not make a jurisdictional error in dismissing the plaintiff’s appeal. The court noted that the County Court has the inherent power to review decisions of courts of limited jurisdiction where there has been a jurisdictional error. However, the court found that the Magistrates’ Court had not made a jurisdictional error, as the record demonstrated that the Magistrates’ Court had properly considered the evidence and made findings of fact that were supported by the evidence. The court held that the County Court’s decision was not based on a jurisdictional error and therefore could not be quashed by certiorari.

The proceeding will be dismissed, and the court will hear counsel as to costs.

Orders

Orders of the court

The proceeding will be dismissed. I will hear counsel as to costs.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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