Smith v Chalmers - [2003] VSC 236

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 4411 of 2003

IN THE MATTER of an Appeal under s. 92 of the Magistrates' Court Act 1989

WILLIAM SMITH	Appellant
v
DOUGLAS CHALMERS	Respondent

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JUDGE:	ASHLEY J.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	25 June 2003
DATE OF JUDGMENT:	1 July 2003
CASE MAY BE CITED AS:	Smith v Chalmers
MEDIUM NEUTRAL CITATION:	[2003] VSC 236

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APPEAL - Criminal proceeding – summary offence – alleged service of summons by post – determination of charge in absence of defendant under s. 41(2)(b), Magistrates' Court Act 1989 – defective affidavit of service – no proof of service of summons upon defendant – need for Magistrates' Court to be satisfied service effected before hearing subject-matter of charge – appeal allowed – matter remitted to the Magistrates' Court.

Appeal – s 92 Magistrates' Court Act 1989 – impermissibility of adducing new evidence.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr S. Hardy	The Law Offices of Barry Fried
For the Respondent	Mr T. Gyorffy	Solicitor for Public Prosecutions

HIS HONOUR:

The Circumstances of the Appeal

This is an appeal under s.92 of the Magistrates' Court Act 1989 (“the Act”) from a final order of the Magistrates' Court at Heidelberg made 20 January 2003 by which the appellant was convicted of an offence against s.49(1)(f) of the Road Safety Act 1986. Penalties were imposed including licence cancellation.

The offending conduct was alleged to have occurred on 16 February 2002. A charge was filed at the Magistrates' Court at Ringwood on 11 November 2002. That was the commencement of a criminal proceeding against the appellant. See 26(1) of the Act. The charge, as is commonly the case, alleged two offences; one against s.49(1)(f) of the Road Safety Act; the other against s.49(1)(b) of that Act.

Also on 11 November 2002 the Magistrates' Court issued a summons. See 28(1)(4) of the Act. The charge and summons were in fact the one document. Nothing was said to turn on that.

The summons directed the appellant to attend at the Magistrates' Court at Heidelberg on 20 January 2003. For the purposes of the Act that was the mention date referred to in s.33(2). See the definition of the “mention date” in s.3(1).

By s.34(1)(a)(ii) every summons to answer a charge, except where otherwise expressly enacted, must be served, in a case such as the present, at least 14 days before the mention date.

Section 36 authorises the service of summonses for certain offences by post. Sub‑section (1) provides that in such a case service may be made

“by posting, at least 14 days before the mention date, a true copy of the summons, addressed to the defendant at the last known place of residence or business of the defendant.”

Regulation 601 of the Magistrates' Court General Regulations 2000 (“the Regulations”) prescribes offences for the purposes of s.36(1). They include summary offences against the Road Safety Act 1986. It follows that the…

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 Smith v Chalmers

Details

AGLC: Smith v Chalmers [2003] VSC 236
Case: [2003] VSC 236
Decision Date: 1 July 2003

CaseChat Overview and Summary

Smith v Chalmers is a case where the defendant, Chalmers, was charged with a summary offence. The dispute arose from whether the summons served on Chalmers was legally valid, specifically in terms of the service by post. The case was heard and determined in the Magistrates' Court of Victoria, and Chalmers appealed the decision to the Court of Appeal.

The primary legal issues before the court were whether the service of the summons was valid and if the Magistrates' Court was correct in determining the charge in the absence of the defendant. The court had to consider the requirements of section 41(2)(b) of the Magistrates' Court Act 1989, which mandates that the court must be satisfied that the summons was served on the defendant before hearing the subject-matter of the charge. The court also needed to examine the admissibility of new evidence under section 92 of the Magistrates' Court Act 1989.

The Court of Appeal found that the Magistrates' Court erred in determining the charge in the absence of the defendant because there was no proof of service of the summons. The court held that the Magistrates' Court must be satisfied that the summons was served on the defendant before hearing the matter. Additionally, the Court of Appeal ruled that it was impermissible for the Magistrates' Court to consider new evidence that was not presented at the original hearing. Consequently, the appeal was allowed, and the matter was remitted to the Magistrates' Court for further proceedings.

Orders