CRIMINAL LAW – practice and procedure – self-represented litigant – application for leave to appeal out of time against decision of magistrate – judge of County Court of Victoria refused to grant leave - judge’s duty to ensure fair trial by giving due assistance – nature and scope of duty – significance of International Covenant on Civil and Political Rights – significance of human rights of equality before the law and access to justice – judge failed to perform duty to assist – breach of rules of natural justice – test for granting leave – “exceptional circumstances” and prosecution not “materially prejudiced” – judge applied incorrect test of delay “too great” – jurisdiction not properly exercised – judicial review granted – order refusing leave quashed and matter remitted for reconsideration – Magistrates’ Court Act 1989, Schedule 6, cl 1(1)-(3).
HUMAN RIGHTS – international law - significance of international obligations in Australian and Victorian domestic law - International Covenant on Civil and Political Rights – human rights of equality before the law and access to justice – relevance to exercise of judicial powers and discretions – significance and relevance independent and ongoing – not diminished, only enhanced, by Charter of Human Rights and Responsibilities Act 2006 - self-represented litigant - duty of courts and tribunals to assist – scope and application of duty.
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APPEARANCES:
Counsel
Solicitors
For the plaintiff
The plaintiff appeared on his own behalf
For the first defendant
Mr T Lynch
Angela Cannon, Solicitor for Public Prosecutions
HIS HONOUR:
INTRODUCTION
Milan Tomasevic had no legal background and was emotionally engaged in his case. But when he appeared before a judge of the County Court of Victoria, he represented himself. He sought leave to proceed with an appeal out of time in respect of criminal charges found proven by a magistrate. Danny Travaglini is the police informant who brought the criminal charges against Mr Tomasevic. He was represented by an experienced barrister instructed by a solicitor, who opposed leave.
Mr Tomasevic harboured a strong sense of grievance about the magistrate’s decision. He contended the finding of guilt had occurred by reason of poor legal representation. He also contended he had abandoned an earlier appeal because the same lawyer had incorrectly told him his career as a teacher would not be affected.
The judge did not tell Mr Tomasevic, but the law governing the leave to proceed application required Mr Tomasevic to establish, one, that he had failed to appeal within time by reason of exceptional circumstances and, two, that the informant’s case would not be…
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.
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Details
AGLC
Tomasevic v Travaglini [2007] VSC 337
Case
[2007] VSC 337
Decision Date
CaseChat Overview and Summary
Tomasevic brought an application for leave to appeal out of time against a decision of the Magistrates' Court of Victoria, which was refused by a judge of the County Court of Victoria. The applicant was a self-represented litigant and the nature of the dispute was the refusal to grant leave to appeal out of time and the alleged failure of the County Court judge to provide adequate assistance to ensure a fair trial. The decision was made in the County Court of Victoria.
The legal issues that the court had to decide were whether the County Court judge had properly exercised their jurisdiction, whether the judge had failed to perform their duty to assist the self-represented litigant, and whether the test applied for granting leave was correct. The court also had to determine the relevance of the International Covenant on Civil and Political Rights and the human rights of equality before the law and access to justice in the exercise of judicial powers and discretions.
The court found that the County Court judge had not properly exercised their jurisdiction as they failed to perform their duty to assist the self-represented litigant. The court held that the judge’s duty to assist was not diminished by the Charter of Human Rights and Responsibilities Act 2006 and was an ongoing and significant obligation. The court also held that the County Court judge had applied an incorrect test of delay, and the test for granting leave was not simply whether the delay was "too great" but whether there were exceptional circumstances and the prosecution was not materially prejudiced. The court quashed the order refusing leave and remitted the matter for reconsideration.
The court granted judicial review and quashed the order of the County Court judge. The matter was remitted for reconsideration in accordance with the Magistrates’ Court Act 1989, Schedule 6, cl 1(1)-(3). The court held that the County Court judge had not properly exercised their jurisdiction, and the matter was to be reconsidered in light of the correct test for granting leave.