Saric v Elliott
[2013] VSC 509
•20 September 2013
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
COMMON LAW DIVISION
No. 3475 of 2012
| MEL (MIOMIR) MARK SARIC | Plaintiff |
| v | |
| TIM ELLIOTT | First Defendant |
| and | |
| COUNTY COURT OF VICTORIA | Second Defendant |
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JUDGE: | T FORREST J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 31 January 2013 | |
DATE OF JUDGMENT: | 20 September 2013 | |
CASE MAY BE CITED AS: | Saric v Elliott & Anor | |
MEDIUM NEUTRAL CITATION: | [2013] VSC 509 | Amended 23 September 2013 |
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COUNTY COURT – Appeal from Magistrates’ Court – Magistrates’ Court orders based on amended charges – Scope of County Court appeal – Whether County Court heard and determined amended charges on appeal
ADMINISTRATIVE LAW – Jurisdictional error – Whether hearing and determination of amended charges without amendment by County Court constituted jurisdictional error - Discretion to grant prerogative relief – Certiorari and mandamus.
ADMINISTRATIVE LAW – Procedural fairness – Whether refusal to adjourn appeal denied plaintiff procedural fairness.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr PJ Billings | Pearce Webster Dugdales |
| For the First Defendant | Mr CJ Ryan SC | Director of Public Prosecutions |
HIS HONOUR:
Background
The plaintiff was charged with three motor traffic offences said to have occurred on 13 August 2009. I shall recite the relevant words of the original charge and summary:
(a)The defendant at Moonee Ponds on 13/08/2009 after having been required to furnish a sample of breath pursuant to s 55 of the Road Safety Act 1986, did refuse to comply with such requirement prior to 3 hours elapsing from the driving of a motor vehicle.
This charge was said to be brought under s 49(1)(e) of the Road Safety Act 1986 (Vic) (‘the Road Safety Act’). I shall refer to this as the refusal charge.
(b)The defendant at Moonee Ponds on 13/08/2009 did drive a motor vehicle on a highway namely Mt Alexander Road where the authorisation granted to him to do so was suspended.
This charge was brought under s 30(1) of the Act.
(c)The defendant at Moonee Ponds on 13/08/2009 being the driver of a vehicle on a road, named Mt Alexander Road and, at traffic lights showing a red light at an intersection with Kellaway Avenue, did enter the intersection against the red traffic light.
This charge was brought under Rule 59(1) of the Road Safety Road Rules 2009 (Vic) (‘the Road Rules’).
The plaintiff has filed an affidavit[1] in which he gives the following account of his journey through the criminal justice system:
[1]Exhibit 1.3.
The Magistrates’ Court
· He engaged a solicitor, Mr Kuzilny, who was ’initially impressive’.[2]
[2]Ibid, paragraph 9.
· He instructed Mr Kuzilny that he wished to plead not guilty to the charges and that he wanted to get off. Mr Kuzilny told him he would fight for him and get him off.[3]
[3]Ibid, paragraph 9.
· He met Mr Kuzilny at the Broadmeadows Magistrates’ Court at about 10.00am on 17 December 2009. He paid Mr Kuzilny’s fees. Mr Kuzilny went off to speak to the police.
· He reiterated to Mr Kuzilny that he wished to fight the charges.[4]
[4]Ibid, paragraph 14.
· The case was called on. Mr Kuzilny announced to the court that his client was pleading guilty. The plaintiff did not understand what was going on and felt ‘powerless to interject’. He was convicted of all offences and fined an aggregate of $1000, his licence was cancelled and he was disqualified from driving for a period of two years.
· Outside court, Mr Kuzilny told him that he had received a great outcome, the minimum ‘time off the road’ and that there was nothing further that could be done for him.
· He ‘shrieked “what”’ at Mr Kuzilny ‘and then it dawned upon [him] that [Mr Kuzilny] had pleaded [him] up for guilty to the charges’.[5]
[5]Ibid, paragraph 16.
· He was shocked and bamboozled. Mr Kuzilney appeared very pleased with himself.[6]
[6]Ibid, paragraph 17.
The Appeal Mentions
· The plaintiff lodged an appeal on 15 January 2010. Initially, it seems he instructed Mr Hargreaves, solicitor, but the relationship was short lived. On 19 August 2010, Mr Hargreaves advised the County Court inter alia as follows:
We confirm that we no longer hold instructions to act on behalf of Mr Mel Saric…
We understand that it is Mr Saric’s intention to apply to have the appeal withdrawn…[7]
The plaintiff says that he does ‘not believe that what was said in that letter represented [his] belief’.
· The plaintiff then instructed Mr Cameron Marshall, solicitor. He says he was told there were some ‘test cases’ going through the ‘higher courts’.
· The appeal was listed for mention on many occasions. It was adjourned, initially on the application of the plaintiff on the basis that judgment was outstanding in a ‘test case’. The plaintiff thinks he went to a mention on 1 July 2010 where he was represented by Ms Turnbull, a solicitor from Mr Marshall’s firm. ‘I remember her telling me in quite a forceful way, even browbeating way, that there was a problem with the wording of the refusal charge’.[8] The plaintiff says that the prosecution sought to amend the wording of that charge and he ‘emphatically told her that [he did not] consent to amending the charge’.[9]
· A further mention occurred on 15 July 2010. The plaintiff did not attend but was represented by Mr Marcevski, another solicitor from Mr Marshall’s firm. Judge Hannan conducted the mention. The prosecution again sought to amend the wording of the breath test charge and Mr Marcevski consented to the amendment. The plaintiff says he was ‘aghast’ when he discovered this, and that the consent to the amendment was ‘not in accordance with [his] instructions’.
· The charge was purportedly amended to read as follows:
The defendant at Moonee Ponds on 13 August 2009 after having been found driving a motor vehicle and after having been required to furnish a sample of breath for analysis by a breath analysing instrument pursuant to section 55(1) of the Road Safety Act 1986, did refuse to comply with such requirement prior to three hours elapsing from the driving of a motor vehicle.[10]
[7]Exhibit 1.3 MM5.2.
[8]Exhibit 1.3, paragraph 32.
[9]Ibid, paragraph 33.
[10]I have underlined the purported amendments made on 15 July 2010.
· The hearing of the appeal was set down for Friday 20 April 2012 before Judge Cotterell. By this stage, it had been adjourned at least eight times.Twenty-seven months had elapsed since the lodgement of the appeal.
The Appeal
· The plaintiff states he was ill on Tuesday 17 April 2012, worse on the Wednesday and by Wednesday evening was ‘succumbing badly to the illness’.[11] His solicitor, Mr Marshall, called him at about this time and inter alia said to him that his appeal was listed for 20 April 2012 and the cases they were hoping to rely upon ‘had gone against us’.[12] Mr Marshall said (according to the plaintiff) ‘sorry it’s all my fault and I’m sorry there’s nothing we can do’.[13] The plaintiff advised him he was ill and requested that the case be adjourned. By Thursday 19 April 2012, the plaintiff’s ‘illness was overwhelming [him]’ and he went to the doctor. The doctor reported in these terms:
[11]Ibid.
[12]Ibid, paragraph 45.
[13]Ibid.
Mr Mel Saric is receiving medical treatment and for the period 19/4/2012 to 20/4/2012 he will be unfit to continue his usual occupation.
19/4/2012
Regards Dr U. Uluca.
· This certificate was emailed to the plaintiff’s solicitors on the Thursday afternoon, together with a request to ‘adjourn the case’. [14]
[14]Exhibit 1.25. Affidavit of Sonja Brown.
· The plaintiff says that the illness was ‘crippling’,[15] and by Friday 20 April 2012 he had become ‘incommunicado’.[16] He did not attend court, but applied through his counsel for an adjournment.
[15]Exhibit 1.3, paragraph 50.
[16]Ibid, paragraph 57.
· Mr Turner of counsel appeared for the plaintiff at the final hearing of the appeal. I have been supplied with a transcript of the hearing.[17] He unsuccessfully applied to adjourn the matter. He relied on two grounds:
(a)his client was ill and not at court; and
(b)a further case Novacik had yet to be determined by the Court of Appeal.
· Mr Turner conceded that the medical certificate ‘did not say much’ and would not really assist the Court to any significant amount – ‘there are some obvious problems with the report’.
· Judge Cotterall stated that she was not satisfied by the application. The prosecution advised her that the case had been before the County Court eleven times, that the Novacik case did not seem to be on point and that the witnesses necessary for a contested hearing were present, including the informant, who had come down from Bendigo. The prosecutor submitted that the appeal should simply be struck out and her Honour expressed a preparedness to accede to that submission.
· Mr Turner then submitted that this course would operate unfairly to the detriment of the plaintiff, who had not sought permission to drive for twelve months after the Magistrates’ Court hearing. Mr Turner submitted that instead of simply striking the matter out (which would have the effect of reinstating the full two year licence cancellation), her Honour ought backdate the sentence by twelve months pursuant to ss 256(2) and (4) of the Criminal Procedure Act 2009. The Crown did not oppose this course and her Honour made orders to that effect.[18]
· Thus the appeal proceeded, effectively, against sentence only and on the basis that the refusal charge had been validly amended by Judge Hannan.
[17]Exhibit 1.3.11.
[18]“The orders of the Magistrates’ Court made at Broadmeadows Court on 17 December 2009 are set aside and in their stead I make the following orders: Order that in relation to Charges 1, 2 and 3 the appellant be convicted and fined $1,000. In relation to his licence, his licence is cancelled and he is disqualified for a period of two years from driving in the State of Victoria and that disqualification will date from 20 April 2011”.
It is apparent that the plaintiff maintains that he has been badly served by the legal profession. Three solicitors and a barrister have acted contrary to his direct instructions and another very experienced solicitor has misrepresented the plaintiff’s appellate intentions in a letter to the County Court (appeals section). The plaintiff has not adduced any evidence from these practitioners. An affidavit was sworn by the plaintiff’s ‘office administrator’ which deals with the plaintiff’s asserted illness. She stated inter alia that by Thursday ‘it was very obvious to [her] that he had probably succumbed to the illness’. Fortuitously this was not the case.[19]
[19]Perhaps coincidentally, both the applicant and his office administrator share a common misunderstanding as to the meaning of the verb ‘succumb’.
This appeal
By originating motion dated 19 June 2012 the plaintiff seeks the following:
· Orders in the nature of certiorari quashing the convictions of the plaintiff in respect of each of the three charges.
· Alternatively, a declaration that the second defendant denied the plaintiff procedural fairness in refusing a further adjournment of the appeal.
· An order in the nature of mandamus directing the County Court at Melbourne to record a dismissal of the refusal charge.
· An order in the nature of mandamus directing the County Court at Melbourne to rehear each of the three charges brought against the plaintiff.
· Such other orders as the Court thinks fit.
· An order that the defendants pay the plaintiff’s costs of the originating motion, County Court appeal and Magistrates Court proceedings.
The plaintiff seeks those orders on the following three grounds:
(a) That Judge Cotterell erred in law in refusing to dismiss the refusal charge brought against the plaintiff.
(b) That Judge Cotterell denied the plaintiff procedural fairness and/or natural justice and/or erred at law and/or there was an error on the face of the record in convicting the plaintiff of the refusal charge where under the circumstances:
(i) the amendment made to the refusal charge was an error of law and/or an error of law on the face of the record by Judge Hannan on 15 July 2010;
(ii) the Court had no jurisdiction to deal with an offence that was not known to the law;
(iii) the Court had no jurisdiction to deal with an offence that prior to amendment was not known to the law;
(iv) the amendment being an error of law and/or an error of law on the face of the record, Judge Cotterell had no jurisdiction to convict the plaintiff; and
(v) in amending the charge Judge Hannan denied the plaintiff procedural fairness.
(c) That Judge Cotterell denied the plaintiff procedural fairness in refusing to allow an adjournment of the trial of the appeal on 20 April 2012.
The second defendant has provided a letter to the Court in which it stated that it did not intend to take an active role in the proceeding and would abide by the decision of the Court. This approach accords with the principles in R v Australian Broadcasting Tribunal, ex parte Hardiman & Ors.[20] Therefore, only the plaintiff and the first defendant have filed submissions and were represented at the hearing.
[20](1980) 144 CLR 13, 35.
Grounds (a) and (b)
As the plaintiff’s grounds (a) and (b) both deal with jurisdictional error it is convenient for me to consider them together.
At the relevant time the County Court’s powers on appeal were contained in the Magistrates’ Court Act1989 (‘the Act’). The relevant provisions of Part 4 Division 4 are set out below:
83 Appeal to County Court
(1)A person may appeal to the County Court against any sentencing order made against that person by the Court in a criminal proceeding conducted in accordance with Schedule 2.
…
86Powers of County Court on appeal
(1)On the hearing of an appeal under section 83 or 84, the County Court-
(a)must set aside the order of the Magistrates’ Court; and
(b)may make any order which the County Court thinks just and which the Magistrates’ Court made or could have made; and
(c)may exercise any power which the Magistrates’ Court exercised or could have exercised.
The plaintiff submitted that the refusal charge as originally framed in the Magistrates’ Court was deficient and did not disclose an offence known to the law. The plaintiff argued that the County Court’s powers under s 86 of the Act are only enlivened ‘on the hearing of an appeal’, which must refer to the actual hearing of the appeal and not some time prior to that. Further, pursuant to s 86(1)(a), on the hearing of an appeal the County Court must set aside the order of the Magistrates’ Court. The plaintiff contended that as the hearing on 15 July 2010 before Judge Hannan was only an appeal mention and the order of the Magistrates’ Court was not expressly set aside, her Honour had no jurisdiction to amend the charge.
Therefore, so the argument goes, when the matter appeared before Judge Cotterell on 20 April 2012 the charge did not disclose an offence known to the law. No application was made at that hearing to amend the charge and her Honour should have allowed the appeal and dismissed the charge.
The plaintiff further submitted that in the event that I find that the refusal charge was properly amended, even in its amended form it remains deficient and does not disclose an offence known to the law.
The first defendant submitted that the appeal in reality commenced on 15 July 2010 before Judge Hannan and the fact that the order of the Magistrates’ Court was not expressly set aside is no hindrance to the County Court’s jurisdiction being enlivened. The first defendant relies on Beach J in Helfenbaum v Sattler & anor where his Honour said:
On the hearing of an appeal the County Court must set aside the orders of the Magistrates’ Court. That requirement is mandatory…
To my mind the real question to be determined in this case concerns the time at which that order is made. It is argued on behalf of the first defendant that the order is deemed to be made when the hearing of the appeal commences. For the plaintiff it is argued that the order is not made until the hearing of the appeal has concluded, the judge has made his determination concerning the fact of the appeal, and appropriate orders including an order setting aside the orders of the Magistrates’ Court are then made.
I think that the correct view of the matter is that when the hearing of the appeal commences, and it must be borne in mind that it is a hearing ‘de novo’, the order of the Magistrates’ Court should be either formally set aside or at least be deemed to be set aside. I say that for the reason that as the hearing is a hearing de novo and regardless of the outcome the order of the Magistrates’ Court must be set aside. [T]here should be no longer any order on foot in respect of the matter at the time the hearing of the appeal commences before the County Court.[21]
[21][1999] 3 VR 583, [21]-[23] (‘Helfenbaum’) (emphasis added).
It followed, so the first defendant argued, that Judge Hannan and counsel were all aware of the process required under s 86(1) of the Act for her Honour’s jurisdiction to be enlivened. As the appeal had commenced on that date the order of the Magistrates’ Court was deemed to be set aside and the fact that Mr Saric’s counsel consented to the amendment necessarily implies that his counsel conceded that the prerequisites to jurisdiction were satisfied.
The first defendant further submitted that Judge Cotterell cannot be said to have fallen into error in circumstances where counsel for Mr Saric effectively asked her Honour to hear the appeal on the basis of the amended charge and make the orders that her Honour did. Counsel, so the first defendant submitted, waived the plaintiff’s rights in respect of any irregularity that may have arisen in the amendment of the charge. Therefore, her Honour was correct to determine the appeal and pass sentence on the basis of the amended charge in the manner that her Honour did.
These competing submissions raise a number of questions for determination.
Did the appeal commence on 15 July 2010 before Judge Hannan?
Section 86(1) of the Act was considered by Habersberger J in CC v Department of Human Services.[22] In that case his Honour was asked to determine whether the County Court had jurisdiction to stay an order of the Children’s Court pending the determination of an appeal against that order. His Honour said:
[T]here are other indications in the [Act] that the phrase ‘on the hearing of an appeal’ simply means the actual hearing of the appeal. For example, the County Court is not required ‘on the hearing of an appeal’ to warn the appellant of the possibility of making a sentencing order more severe than that made by the Magistrates’ Court (s 86(1AA) of the [Act]). If the appellant fails to appear at the time listed for the ‘hearing of the appeal’, the County Court may proceed ‘to hear and determine the appeal’ in the appellant’s absence (s 86(3A) of the [Act]). Finally, where the County Court has heard the appeal in the absence of the appellant, the application for a re-hearing must state why the appellant did not appear ‘at the hearing of the appeal’ (s 89A(4) of the [Act]). In the various phrases quoted above the word ‘hearing’ must mean in my opinion, the actual hearing and not some preliminary hearing in relation to the appeal. Therefore, on the basis that a word or phrase used several times in the same part of a piece of legislation should have the same meaning throughout, I am forced to the conclusion that the powers contained in s 86(1)(c) of the [Act] can only be exercised at the actual hearing of the appeal itself and not before.[23]
[22][2003] VSC 134 (‘CC’).
[23]Ibid, [28].
The first defendant sought to distinguish CC on the basis that the order sought in that case did not form part of the matters to be addressed on ‘the hearing of an appeal’. The first defendant submitted that in the present case, the amendment of the charge must have formed part of ‘the hearing of an appeal’ because it dealt with a matter that was integral to and inseparable from the issues to be decided on the appeal, namely the nature of the charge against the plaintiff.
I do not accept this submission. In my view, the language of the provision is clear enough; the powers of the County Court contained in s 86 of the Act are enlivened ‘on the hearing of the appeal’. To try to read into those words scope for the powers to be exercised whenever matters that are integral to and inseparable from the issues to be decided on appeal are being considered in a preliminary proceeding would be contrary to the plain words of the section. I agree with what Habersberger J said in CC, that those powers can only be exercised at the actual hearing of the appeal and not before. This approach is consistent with the broader statements that have been made regarding the work that s 86 of the Act does. For example, Redlich J (as his Honour then was) in Neill v County Court & anor said:
Section 86 is to be construed as investing in the County Court during the re-hearing the same capacity to pronounce any order which the magistrate could have pronounced or to exercise any power which the magistrate could have exercised at the time of the proceedings in the Magistrates’ Court…[24]
[24][2003] VSC 328, [21] (emphasis added).
It follows that I do not accept that the hearing of the appeal commenced at the mention on 15 July 2010 before Judge Hannan. The County Court’s jurisdiction to amend the charge was therefore not enlivened on that day. As a result, in my view the purported amendment to the charge was ineffective, and so the refusal charge remained defective at the hearing of the appeal on 20 April 2012 before Judge Cotterell.
Was the refusal charge properly amended at the hearing of the appeal before Judge Cotterell?
Judge Cotterell heard the appeal on 20 April 2012. I regard the fact that her Honour did not specifically set aside the orders of the Magistrates’ Court as immaterial. The orders were set aside upon the commencement of the appeal.[25] The jurisdictional prerequisite contained in s 86(1)(a) was therefore met and her Honour then had the power to:
(a)make any order which her Honour thought just and which the Magistrates’ Court made or could have made (s 86(1)(b)), which includes the power to amend a charge to correct a defect or error (s 50); and
(b)exercise any power which the Magistrates’ Court exercised or could have exercised (s 86(1)(c)).
[25]Helfenbaum [1999] 3 VR 583, [23] (Beach J).
It was at this stage that the prosecution could have sought to amend the charge, despite the fact that the amendment was out of time. This is because an amendment out of time which seeks to clarify the charge is permissible, but an amendment out of time which goes further than that is not.[26] Nettle JA observed in Director of Public Prosecutions (Vic) v Kypri:
[A]n amendment may be permitted out of time when, despite the amendment, the offence charged stays the same. But an amendment will not be allowed out of time if it would result in the formulation of a new and different charge. The latter is treated as an impermissible attempt to avoid the limitation period.
A charge which lacks an essential element of the alleged offence is defective and, at common law, may be described as a nullity. If, however, the true nature of the offence is apparent from the face of the charge, and the defendant has not been misled or otherwise prejudiced by the omission, the charge may be amended under s 50 (even out of time) to include the missing element… on the basis that such an amendment does no more than clarify what is already apparent from the face of the charge.[27]
[26]Broome v Chenoweth (1946) 73 CLR 583, 601 (Dixon J).
[27](2011) 33 VR 157, [23]-[24] (‘Kypri’) (citations omitted).
The first defendant submitted, in effect, that the conduct of both the plaintiff and the defendants at the hearing of the appeal was such that this court could infer that the relevant charge was implicitly amended at that hearing. Counsel for both sides and her Honour proceeded on the basis that the purported amendment made by Judge Hannan had, in fact, been made, and counsel for the plaintiff made submissions on penalty that were predicated upon the charge in its purportedly amended form.
It is clear to me that all parties thought that the charge had been validly amended before Judge Hannan and that the appeal hearing proceeded on the basis of that belief. However, I am not prepared to find that the charge was, in fact, amended by or before Judge Cotterell. It would have been open to her Honour to find the plaintiff was aware of the true nature of the charge and the amendment would have done no more than clarify the charge. So much is evidenced by the fact that counsel, on the plaintiff’s behalf, consented to the proposed amendment at the appeal mention on 15 July 2010. It would also have been open to her Honour to find that the plaintiff was not misled or otherwise prejudiced by the deficiencies in the original charge for the same reason; his counsel consented to the proposed amendment.
These observations, however, do not mean that the charge was amended at the hearing of the appeal; they simply mean that it could have been amended. Her Honour was not asked to amend the charge, and her Honour did not amend the charge. I am not prepared to find that the charge was implicitly amended by the conduct of the parties. The amendment of a criminal charge is an important step in the prosecutorial process. It must be open and transparent. In my view it is not amenable to some post-fact process of inference. I consider that her Honour mistakenly proceeded on the basis that the charge was amended by Judge Hannan.
In my view this mistake constitutes a jurisdictional error. In Craig v South Australia (‘Craig’)[28] the High Court confirmed that superior courts have jurisdiction to grant prerogative relief to remedy errors of inferior courts where those errors go to jurisdiction. In that judgment the majority said this:
An inferior court falls into jurisdictional error if it mistakenly asserts or denies the existence of jurisdiction or if it misapprehends or disregards the nature or limits of its functions or powers in a case where it correctly recognises that jurisdiction does exist.[29]
[28](1995) 184 CLR 163.
[29]Ibid at 177.
The judgment then set out examples in which a court may fall into jurisdictional error.
Similarly, jurisdictional error will occur where an inferior court disregards or takes account of some matter in circumstances where the statute or other instrument establishing it and conferring its jurisdiction requires that that particular matter be taken into account or ignored as a pre-condition of the exercise of any authority to make an order or decision in the circumstances of the particular case. Again, an inferior court will exceed its authority and fall into jurisdictional error if it misconstrues that statute or other instrument and thereby misconceives the nature of the function which it is performing or the extent of its powers in the circumstances of the particular case.[30]
Though it warned Craig did not provide a ‘rigid taxonomy’ of jurisdictional error, the High Court has since repeated these general descriptions in Kirk v Industrial Relations Commission (NSW).[31]
[30] Ibid.
[31](2010) 239 CLR 531 at [73].
If follows that the County Court had the power to hear and determine the appeal but Judge Cotterell proceeded on the basis of an amendment that had not been made. In other words, led into error by counsel, her Honour took into account three elements that were part of the purportedly amended charge, but were not in fact alleged as part of the charge that was properly before her Honour.[32] It follows that I consider that her Honour misapprehended her Honour’s functions and powers on the hearing of this appeal by proceeding to convict the plaintiff of a purportedly amended charge which was not in fact before her Honour. In doing so, her Honour has fallen into jurisdictional error.
[32]The essential elements of a charge under s 49(1)(e) of the Road Safety Act are:
1. That the defendant has been found driving a motor vehicle;
2. That the defendant had undergone a preliminary breath test by a prescribed device pursuant to s53(1) of the Act;
3. That a member of the police force had formed an opinion that the test made in his presence indicated that the defendant’s blood contains alcohol;
4. That the defendant has been required to furnish a sample of breath for analysis by a breath analysing instrument; and
5. That the defendant has refused to comply with that requirement. (See DPP Reference No 2 of 2001 (2001) 4 VR 55;
The original charge did not allege elements 1, 2 and 3 above.
Discretionary Relief
The plaintiff seeks from this Court an order in the nature of mandamus directing the Country Court to record a dismissal of the refusal charge. If the plaintiff seeks to quash the conviction and ensure the County Court’s records reflect that fact then an order in the nature of certiorari is sufficient for that purpose. As an alternative to this relief, the plaintiff seeks an order in the nature of mandamus directing the County Court to rehear each of the three charges brought against the plaintiff.
In determining the nature of the relief appropriate in this case, I must take care to tailor it to the actual error made at the County Court. The Court proceeded on the basis that the first charge had been amended when it had not. It therefore fell into jurisdictional error when it recorded a conviction on a charge that was not actually before it.
I have explained at [21]-[24] that the County Court had the power to consider the proposed amendment at the appeal hearing. If I remit the matter it will retain that power and a judge of that Court will consider any application to amend the charge. If the amendments are allowed the matter can then finally be heard on its merits. I have remarked that her Honour was led into error by a confluence of factors, including the consent by the plaintiff’s representatives to the proposed amendments and the subsequent acceptance by the plaintiff’s representatives of the defectively amended charge as the basis for the appeal determination. In the circumstances, I consider that it would be unjust simply to direct the County Court to dismiss the refusal charge. Such an outcome would mean that that charge would never be heard on its merits and that the applicant would benefit from the alleged negligence of his former legal representatives.
I consider that I should grant prerogative relief. The applicant has been convicted of a charge that was not before the Court. I consider that the conviction on the refusal charge and the aggregate penalty (including also penalties on charges 2 and 3) should be quashed. I consider it appropriate to remit the appeal to the County Court for rehearing. As I have said, any application for an amendment can be determined at this rehearing and the refusal charge can be determined on its merits. I set out the relevant orders at paragraph [34] of these reasons.
Ground (c) – Procedural Fairness
It is unnecessary to deal with this ground at any length, given my conclusions on grounds (a) and (b). For the benefit of the parties, I make the following observations and findings:
· The medical certificate that was provided at the hearing of the appeal and relied upon in support of an adjournment application was entirely insufficient.
· Her Honour was entitled to request further information on this application. None was adduced.
· Her Honour correctly commented during the application that if Mr Saric genuinely was suffering from a medical emergency he could apply to have the appeal reinstated (presumably pursuant to s 267(3) of the Criminal Procedure Act2009 (Vic)).
· Mr Saric has not sought to have his appeal reinstated.
· Mr Saric’s counsel at the appeal hearing effectively conceded that the adjournment application was based on insufficient material and would be unsuccessful.
If I were compelled to determine ground (c) I would find that the plaintiff was not denied procedural fairness by her Honour. Given my findings on the other grounds advanced by the plaintiff it is unnecessary to say more.
Orders
Accordingly, I make the following orders:
(a)In the nature of certiorari, quashing the order of the County Court of 20 April 2012 recording a conviction under section 49(1)(e) of the Road Safety Act (The refusal charge);
(b) In the nature of certiorari, quashing the order or orders of the County Court imposing an aggregate penalty of $1000, cancelling the plaintiff’s drivers licence and disqualifying him from driving for a period of 2 years (dated from 20 April 2011);
(c) In the nature of mandamus, directing the County Court to rehear and re-determine the appeal against the order of the Magistrates’ Court recording a conviction under section 49(1)(e) of the Road Safety Act; and
(d) In the nature of mandamus, directing the County Court to impose a penalty in relation to the convictions recorded at the County Court on 20 April 2012 under sections 30(1) of the Road Safety Act and 59(1) of the Road Rules.
I will hear the parties on the question of costs.
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