JUDGE:	NIALL JA
WHERE HELD:	Melbourne
DATE OF HEARING:	16 July 2020
DATE OF JUDGMENT:	19 August 2020
CASE MAY BE CITED AS:	Treloar v Richardson
MEDIUM NEUTRAL CITATION:	[2020] VSC 479

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JUDICIAL REVIEW – Criminal practice and procedure – Whether magistrate erred in conducting summary hearing of indictable charges – Whether appellant consented to summary jurisdiction – Whether accused must be present when consent to summary jurisdiction is entered –Whether a formal order is required – Criminal Procedure Act 2009 s 29 – Whether magistrate erred in refusing leave to withdraw consent to summary jurisdiction – Clayton v Hall [2008] VSC 172 considered – Whether magistrate erred in allowing prosecution to tender Victim Impact Statement as evidence on plea – meaning of ‘victim’ in Sentencing Act 1991 s 3(1) – The Queen v Miller (1995) 2 VR 348 considered – Berichon v The Queen (2013) 40 VR 490; [2013] VSCA 319 considered – Appeal dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Appellant:	Mr Nicholas Papas QC With Mr J Lavery	Access Law
For the Respondent:	Mr B L Sonnet	Ms A Hogan, Solicitor for Public Prosecutions

HIS HONOUR:

On 14 May 2019, the appellant was convicted in the Magistrates’ Court of Victoria at Horsham on three charges of theft from her employer and sentenced to an aggregate term of imprisonment of four months. The amount taken was relatively modest, between $3,000 to $4,000. She was acquitted of one other charge of theft and one other charge of obtaining property by deception, and three alternative charges of obtaining property by deception were struck out.

Pursuant to s 272 of the Criminal Procedure Act2009 (the ‘CPA’) she appeals to this Court on a question of law. In her notice of appeal, she identifies four questions of law, supported by four grounds for appeal, one of which was abandoned at the hearing.

All of the charges against the appellant were for indictable offences. Because the charges were indictable they could only be heard and determined in the Magistrates’ Court with the consent of the appellant.[1] The first two grounds of appeal concern respectively whether the appellant consented to summary jurisdiction, and, if she did so, whether the magistrate erred in law in refusing leave to the appellant to withdraw that consent.
[1]CPA ss 28, 29.

Ground 3 was abandoned and need not be further mentioned.

Ground 4 relates only to sentence, and asserts that the magistrate erred in admitting a Victim Impact Statement (‘VIS’) in evidence on the plea. The ground concerns whether the author of the statement, who was a fellow employee of the appellant, was a ‘victim’ within the meaning of s 3(1) of the Sentencing Act 1999 (the ‘Sentencing Act’). Consideration of it can be deferred until after the resolution…

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 Treloar v Richardson

Details

AGLC: Treloar v Richardson [2020] VSC 479
Case: [2020] VSC 479
Decision Date: 19 August 2020

CaseChat Overview and Summary

Treloar v Richardson was a case heard by the Victorian Court of Appeal. The appellant, Mr. Treloar, challenged the magistrate's decision to conduct a summary hearing of indictable charges without his consent, and to allow a Victim Impact Statement to be tendered as evidence on plea. The court was tasked with determining whether the magistrate erred in these decisions.

The court first considered whether the magistrate had erred in conducting the summary hearing without the appellant's consent. It was established that the appellant had not consented to the summary jurisdiction, and there was no requirement for the accused to be present when consent is entered or for a formal order to be made. The court found that the magistrate had not erred in this respect. The court then examined whether the magistrate had erred in refusing the appellant leave to withdraw his consent to summary jurisdiction. The court found that the refusal was not an error, as the appellant had not provided sufficient grounds to justify the withdrawal. Lastly, the court considered whether the magistrate had erred in allowing the prosecution to tender a Victim Impact Statement as evidence on plea. The court found that the magistrate had not erred in this respect, as the meaning of ‘victim’ in the Sentencing Act 1991 s 3(1) was not limited to the person who suffered the immediate harm caused by the offence.

The appeal was ultimately dismissed by the court. The court found that the magistrate had not erred in any of the decisions challenged by the appellant. The court held that the magistrate's decision to conduct the summary hearing, to refuse leave to withdraw consent to summary jurisdiction, and to allow the Victim Impact Statement to be tendered as evidence on plea were all within the magistrate's discretion and did not constitute an error of law.

Orders