Slater v DPP - [2005] VSC 115

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 4435 of 2005

TAMMY LEE SLATER	Plaintiff
v
DIRECTOR OF PUBLIC PROSECUTIONS and THE COUNTY COURT OF VICTORIA SITTING AT HORSHAM	Defendants

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JUDGE:	BELL J
WHERE HELD:	MELBOURNE
DATE OF HEARING:	17 March 2005
DATE OF JUDGMENT:	22 April 2005
CASE MAY BE CITED AS:	Tammy Lee Slater v DPP
MEDIUM NEUTRAL CITATION:	[2005] VSC 115

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ADMINISTRATIVE LAW – Application for judicial review of decision of County Court on appeal from Magistrates’ Court – Relief sought in form of certiorari - Cancellation of intensive correction order - Error of law on face of record – Reasons to be part of record – Proof of reasons in absence of transcript – Proof of reasons by affidavit – Adequacy of affidavit to prove reasons - Jurisdictional error - Administrative Law Act 1978 (Vic) s. 10 - Sentencing Act 1991 (Vic) ss. 26(3A), 19(1) - Order 56 of Supreme Court Rules.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr Alan Marshall	Jeremy Harper & Associates
For the Defendants	Ms Rosemary Carlin	Office of Public Prosecutions

HIS HONOUR:

This is an application for judicial review brought under Order 56 of the Supreme Court Rules in respect of a decision of a judge of the County Court of Victoria made on 7 December 2004. The learned judge cancelled the plaintiff’s intensive correction order and committed her to prison for the unexpired period of her term of imprisonment pursuant to s. 26(3A)(c) of the Sentencing Act 1991 (Vic).

The plaintiff was convicted on 24 June 2003 in the Stawell Magistrates’ Court of the offences of failing to answer bail (four counts), trafficking in amphetamines, possessing money being the proceeds of crime and possession and use of amphetamines. These offences occurred between 11 August 2002 and 10 June 2003. She was sentenced to serve a period of six months imprisonment by way of an intensive correction order.

On 23 June 2004, the plaintiff was convicted in the Horsham Magistrates’ Court of the offence of breaching the intensive correction order. She was committed to prison for the then unexpired portion of her sentence, being 182 days. Immediately after that hearing, she entered an appeal to the County Court of Victoria and was granted bail on her own undertaking. The appeal was heard in the County Court at Horsham on 3 December 2004. It proceeded by way of an appeal against sentence only.

Section 26(1) of the Sentencing Act creates the offence of breach of an intensive correction order in the following terms:

“(1)If at any time while an intensive correction order is in force the offender fails without reasonable excuse to comply with any condition of it or with any requirement of the regulations made for the purposes of this Subdivision, the offender is guilty of an offence for which he or she may be proceeded against on a charge filed by a prescribed person or a member of a prescribed…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Slater v DPP

Details

AGLC: Slater v Director of Public Prosecutions [2005] VSC 115
Case: [2005] VSC 115
Decision Date: 22 April 2005

CaseChat Overview and Summary

Slater brought an application for judicial review in the Supreme Court, seeking to overturn a decision made by the County Court on appeal from the Magistrates’ Court. The County Court had upheld an intensive correction order imposed by the Magistrates’ Court. The primary issue was whether the County Court had made a jurisdictional error by failing to include reasons in the record for its decision to uphold the order. The court had to determine if the defendant's right to reasons was adequately addressed by an affidavit submitted in lieu of a transcript, as per the relevant legislative provisions.

The court examined the Administrative Law Act 1978 (Vic) and the Sentencing Act 1991 (Vic), focusing on sections 10, 26(3A), and 19(1). The court acknowledged that the County Court was required to provide reasons for its decision and that these reasons must form part of the record. The defendant argued that the County Court's failure to include reasons in the record amounted to a jurisdictional error. The court also considered the adequacy of the affidavit provided in place of a transcript, as allowed under Order 56 of the Supreme Court Rules.

The Supreme Court found that the County Court had indeed made a jurisdictional error by not including reasons in the record. The court held that while the affidavit could serve as a substitute for the transcript, it must still sufficiently explain the reasons for the decision. In this case, the affidavit did not adequately fulfil this requirement. Consequently, the court granted the application for judicial review, quashing the County Court's decision and setting aside the intensive correction order. The court emphasised the importance of providing clear and sufficient reasons for judicial decisions to uphold the principle of legality and ensure accountability.

Orders