Treloar v Richardson
[2020] VSC 479
•19 August 2020
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S ECI 2019 02574
| COLLEEN TRELOAR | Appellant |
| v | |
| DAVID LEIGH RICHARDSON | Respondent |
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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 of grounds 1 and 2.
For the reasons that follow, none of the grounds of appeal have been made out. I would dismiss the appeal.
The facts
The appellant was charged with eight indictable offences in December 2017. Following the filing of those charges in the Magistrates’ Court, a number of mentions and other hearings were held in order to progress the charges. All of the relevant procedural steps were undertaken by the parties and the Court with a view to having the charges heard summarily.
26 March 2018
For present purposes, the first critical date is 26 March 2018. On that day, the matter was listed for a summary case conference in the Magistrates’ Court at Horsham. The appellant’s instructing solicitor, Mr Moore, appeared on her behalf before Magistrate Saines.
When the matter was called, Mr Moore announced his appearance and stated: ‘… there are indictable offences and we consent to the jurisdiction of this Honourable Court.’ Mr Moore thanked the magistrate for excusing his client over the lunch break. He explained that the appellant was accompanying her daughter while her daughter’s newborn, who was in intensive care, was transferred to Ballarat. Mr Moore submitted that a further case conference was required, noting: ‘it’s contested at this stage.’
Although it is not entirely clear, it appears that the appellant attended Court that day, as required by her conditions of bail, but left before the matter was called. At all events, in her absence, she was excused from attendance when the matter was called.
The magistrate asked the prosecutor for his view as to whether there should be a further summary case conference or a contest mention. The prosecutor said there may be a further witness and that on the next occasion the parties would be in a position to indicate whether there would be a contest or a plea of guilty. The prosecutor submitted that a short adjournment would be productive. The matter was listed for a further mention on 27 April 2018 and the magistrate extended the appellant’s bail in her absence.
4 July 2018
A contest mention[2] took place on 4 July 2018. The appellant attended before Magistrate Clifford, and was again represented by her solicitor. Before that mention, a ‘Request for Contested Summary Hearing’ form was completed and signed by both the prosecutor and the appellant’s solicitor. That document was in the form prescribed under r 22 of the Magistrates’ Court Criminal Procedure Rules 2009. It includes a ‘ticked box’ where it records that the appellant consents to summary jurisdiction. The matter was listed for a contested summary hearing.
[2]CPA s 55.
The matter was adjourned for a contested hearing on a number of occasions and ultimately listed before Magistrate Saines on 19 March 2019 for a two day hearing.
19 March 2019
On 19 March 2019, the appellant attended Court and was represented by counsel. At the outset of the hearing, counsel informed the magistrate that: ‘[the appellant] does not consent to summary jurisdiction in respect of the matters.’ Counsel said that he had told the Court Registry and been informed that there was a notation on the brief of consent to ‘SJ’, which he took to be a reference to consent to summary jurisdiction. Counsel said that he had then made enquiries and been informed that there were no registered orders in respect of the matter on the Court system. Counsel submitted that the matter could not proceed summarily without a Court order.
Counsel referred the magistrate to the decision of Williams v Hand[3] and the magistrate raised the decision of Clayton v Hall.[4]
[3][2014] VSC 527.
[4][2008] VSC 172.
The magistrate observed that he had made the note and that his terminology appeared to indicate entry of consent to summary jurisdiction. He also noted that it was his practice to engage in a ‘formal process … to determine summary jurisdiction’. The magistrate proposed to stand the matter down to consider the position. The prosecutor informed the magistrate that the matter had a long history and that there were three civilian witnesses present and ready to give evidence.
Counsel for the appellant submitted that the matter could not proceed as a summary hearing without an order of the Court and it was always a question for the Court to determine whether indictable matters are appropriate to be heard summarily.
The matter was briefly stood down for the magistrate to read the two authorities referred to and to consider the question of jurisdiction. When the matter resumed, counsel for the appellant reiterated his primary submission that the appellant had not consented to summary jurisdiction and, in the alternative, applied for leave to withdraw the consent.
The magistrate then said that he had reviewed the facts and that he had made a note that ‘used the words consent to summary jurisdiction, but also included … that it was entered’. He added that: ‘[t]his is a notation I use routinely … it followed an explanation of rights, and it followed consent having been given and formally entered by an accused person’. He then said he was ‘satisfied that consent to summary jurisdiction was entered pursuant to [s] 29(1)(b) of the [CPA] … on the 26th of March 2018.’ The magistrate said that he had made the record with the authority of Clayton v Hall[5] in mind ‘to clarify the fact of consent to summary jurisdiction.’ The magistrate determined that an order was not required because that would be inconsistent with s 29 of the CPA.
[5][2008] VSC 172.
The magistrate then said that he would entertain the application for leave to withdraw consent.
The magistrate said that he would ordinarily seek to be informed by one party or another about the allegations ‘in a very basic form’, noting his understanding that the charges involved theft or alternatively dishonest misappropriation of property of less than $5,000. The prosecutor then confirmed that the charges involved allegations of theft of less than $5,000 from the appellant’s employer over four transactions.
The appellant then gave evidence in support of her application. She said that she was arrested and charged in December 2017 and consulted lawyers. She said that her solicitors informed her as to the nature and potential seriousness of the allegations, gave advice about potential penalties and the likelihood of success and the complexity of the matter. She said that she understood that her lawyers had indicated consent to summary jurisdiction on her behalf in March 2018.
The appellant then outlined a number of matters that she said had changed since her consent to summary jurisdiction had been given in March 2018. She said that further material had been served by the prosecution and she had spoken to her lawyers about the seriousness of the charges and complexity of the matter in light of that further material. She acknowledged that she had previously received general advice about the advantages and disadvantages of having matters heard in summary jurisdiction as opposed to trial before judge and jury.
She was then asked by her counsel to compare the legal advice that she had received about consenting to summary jurisdiction in the past compared to the advice that she had received more recently. She replied as follows:
… due to the fact that extra or … more evidence is [going] to be involved and has … come after the initial … brief was handed up, so there’s extra evidence has come in, it’s made the case more complex, … and I feel that it’s my right to have this tried before a jury that will … and I feel they will have more understanding [of] what actually … happened concerning my side of things, as opposed to just having the judge hear … one, you know one side.
The appellant was then taken through certain matters that the prosecution intended to rely on, notice of which had only recently been served. These included alleged admissions and evidence of prior acts of dishonesty. She said that she had received advice in light of that material about the seriousness of the matter and the prospects of success and, as a result of that advice, she wished for the matter to go to trial by jury.
The appellant was cross-examined.
After hearing submissions from both parties, the magistrate refused the application and gave brief oral reasons. The magistrate commenced by noting that, ‘[a]s previously recited’ the appellant had consented to summary jurisdiction ‘in a formal manner’ on 26 March 2018, and that he was satisfied that there had been sufficient compliance with s 29(1)(b) of the CPA.
The magistrate then noted that the appellant was entitled, by leave, to withdraw her consent to summary jurisdiction. He referred to Clayton v Hall[6] as authority for the proposition that in determining whether to grant such leave, the Court is to be guided by the justice of the circumstances. He then addressed a number of matters.
[6][2008] VSC 172.
First, the magistrate noted the extensive procedural history since March 2018. He recorded that the matter was listed for mention in April and May 2018, and contest mentions on 23 May and 4 July 2018. The matter was listed for a contested hearing on 17 October 2108 but did not proceed on that date. It was relisted for a two-day hearing on 27 November 20018 and again adjourned to 19 March 2019. As the magistrate noted, it was the third occasion on which the matter had been listed for a final contested hearing.
The magistrate then turned to the reason why the appellant wanted trial by jury. He noted that the appellant submitted that the matter was more complex and more serious than it had been in March 2018, as a result of the recent material served by the prosecution. In that respect, he observed that the prosecution had recently provided further evidence in relation to alleged admissions, and the reliability of certain documents. The magistrate concluded that these matters did not entail a new case but amounted to additional evidence.
In a passage criticised by the appellant, and to which I shall return, the magistrate said:
To the extent that … [the appellant] … asserts a right to a jury, … there is in general a right to a jury but that is not relevant to a leave application.
To the extent that [the appellant] asserts that a jury are more able to understand her side of things, … to the extent that a jury are more capable of … maybe asserted to be more capable of making an assessment of witness credibility, … I reject those assertions or any implication to that effect.
I am not persuaded that the opportunity to meet any additional evidentiary matters is denied by a summary hearing, nor would be it more advanced or improved by a jury hearing.
I am not satisfied that the complexity nor seriousness of this case … itself … means that a Magistrate or a jury is better placed to determine it.
The magistrate then referred to s 29(2) of the CPA, saying that he did not ignore those matters, although they were matters to be considered upon an application for summary jurisdiction rather than an application for leave. He observed that the charges involved matters that are ‘in almost every other circumstance’ dealt with summarily. Finally, the magistrate referred to the availability of Court time, and the obligation of the Court to ensure the efficient delivery of justice which would be better served by a summary hearing. Accordingly, the magistrate refused the application.
The legislative provisions
The Magistrates’ Court has jurisdiction to hear and determine all summary offences; all indictable offences which may be heard and determined summarily; and conduct committal proceedings into indictable offences and, on those, either direct that the accused be tried or discharged.[7] The jurisdiction to hear and determine summary offences includes the determination of guilt and the imposition of punishment. The jurisdiction on a committal entails the exercise of administrative or executive power, not judicial power, and requires the prosecution to bring forward the evidence in support of the charge and the magistrate to assess whether there is sufficient evidence for the accused to be committed for trial.[8]
[7]Magistrates’ Court Act 1989 s 25(1).
[8]Grassby v The Queen (1989) 168 CLR 1; [1989] HCA 45.
Relevantly, a criminal proceeding in the Magistrates’ Court is commenced by filing a charge sheet.[9] It follows from the preceding paragraph that once filed, jurisdiction is invoked but the nature of the jurisdiction of the Magistrates’ Court depends, in part, on the nature of the offence.
[9]CPA s 6.
For a very long time, extending back at least to the 19th century, Magistrates’ Courts or their predecessors have had jurisdiction to hear and determine summarily certain indictable offences where it is appropriate to do so and with the consent of the accused.[10] The requirement for consent is a reflection of the right of an accused charged with an indictable offence to have the charge determined by a jury and the protections a jury affords to the administration of justice and to the accused.[11] Notwithstanding the virtues of a jury, there are obvious benefits to summary disposition, including expedition, cost and a cap on the sentence that may be imposed. For example, on a charge of theft, the maximum penalty is 10 years’ imprisonment,[12] but the Magistrates’ Court can only impose a maximum of two years’ imprisonment.[13]
[10]Hall v Braybrook (1956) 95 CLR 620; [1956] HCA 30. For a detailed history see also Williams v Hand [2014] VSC 527.
[11]R v Baden-Clay (2016) 258 CLR 308, 329 [65]; [2016] HCA 35 (French CJ, Kiefel, Bell, Keane and Gordon JJ); Kingswell v The Queen (1985) 159 CLR 264, 301; [1985] HCA 72 (Deane J); Brown v The Queen (1986) 160 CLR 171, 201; [1986] HCA 11 (Deane J); Katsuno v The Queen (1999) 199 CLR 40, 63–4 [49]; [1999] HCA 50 (Gaudron, Gummow and Callinan JJ); Cheng v The Queen (2000) 203 CLR 248, 277–8 [80]; [2000] HCA 53 (Gaudron J); Alqudsi v The Queen (2016) 258 CLR 203, 208 [2], 213 [18] (French CJ), 273–4 [195] (Nettle and Gordon JJ).
[12]Crimes Act1958 s 74(1).
[13]Sentencing Act s 113(1).
Reflecting that longstanding practice, s 28 of the CPA provides that a charge for certain indictable offences, including those brought against the appellant, may be heard and determined summarily by the Magistrates’ Court if s 29 is satisfied.
Section 29 relevantly provides:
29 When an indictable offence may be heard and determined summarily
(1) The Magistrates’ Court may hear and determine summarily a charge for an offence to which section 28(1) applies if —
(a) the court considers that the charge is appropriate to be determined summarily, having regard to the matters in subsection (2); and
(b) the accused consents to a summary hearing.
(2) For the purposes of subsection (1)(a), the Magistrates’ Court must have regard to —
(a) the seriousness of the offence including —
(i)the nature of the offence; and
(ii) the manner in which the offence is alleged to have been committed, the apparent degree of organisation and the presence of aggravating circumstances; and
(iii) whether the offence forms part of a series of offences being alleged against the accused; and
(iv) the complexity of the proceeding for determining the charge; and
(b) the adequacy of sentences available to the court, having regard to the criminal record of the accused; and
(c) whether a co-accused is charged with the same offence; and
(d) any other matter that the court considers relevant.
(3) A legal practitioner appearing for an accused may, on behalf of the accused, consent to a summary hearing of a charge for an indictable offence.
…
Section 30 of the CPA provides the procedure to be applied in respect of indictable offences that may be heard and determined summarily. It provides that either the informant or the accused may apply for summary hearing[14] or, without such an application, the court may offer a summary hearing to the parties.[15] An application for, or an offer by the magistrate of, a summary hearing may be made at any time before the Magistrates’ Court determines whether to commit the accused for trial.[16] It follows that a decision to deal with an offence summarily may be made after evidence has been given in a committal hearing. In that case, s 30(7) allows, with the consent of the accused, the evidence adduced at the committal to be admitted as evidence in the summary hearing.
[14]CPA s 30(1).
[15]Ibid s 30(2).
[16]Ibid s 30(3).
In the event that an application for summary hearing is made before the hearing of any evidence, the Magistrates’ Court may seek from the prosecutor or informant an outline of the evidence which will be presented for the prosecution; and any other information which the Court considers relevant for the purpose of the Court determining whether to grant a summary hearing.[17]
[17]Ibid s 30(4).
The CPA provides separately for the applicable procedure in relation to the jurisdiction to hear and determine charges, including indictable offences tried summarily, and the committal jurisdiction. Although the CPA provides separate and distinct procedural steps reflecting the different nature of the two jurisdictions, the ability to deal with an indictable offence summarily is not foreclosed until there is an order for committal.
The procedures that apply to a summary hearing are applicable to both summary offences and indictable offences to be tried summarily. These include pre-hearing disclosure of the brief of evidence[18] and continuing obligations of disclosure.[19] Division 4 of pt 3.2 provides for mention hearings, summary case conferences and contest mention hearings. Those hearings are designed to ensure the proceeding is ready for hearing or explore the possibility that the charges might be resolved by a plea of guilty. Section 53 provides, amongst other things, that at a mention hearing, the Magistrates’ Court may, if the offence is an indictable offence that may be heard and determined summarily, grant a summary hearing; immediately hear and determine the charge; and fix a date for either a contest mention hearing or a summary hearing of the charge.
[18]Ibid s 35 (preliminary brief); s 40 (full brief).
[19]Ibid s 42.
A summary case conference is a conference between the prosecution and the accused for the purpose of managing the progression of the case.[20] Section 55 deals with contest mention hearings. At a contest mention hearing, the Magistrates’ Court may make various orders to advance the proceeding towards trial. Notably, by s 55(4) the accused must attend,[21] in the sense of being physically present or present by audio visual link, all contest mention hearings. That is not expressly required for mentions and summary case conferences.
[20]Ibid s 54(1).
[21]Ibid s 329
There are two important occasions when the accused must communicate his or her position to the court. The first concerns the entry of a plea and the second the election to go into evidence. Section 62(1) provides that subject to sub-s (2), the Magistrates’ court must ensure that any charge, as set out in the charge-sheet, is read to the accused or its substance is explained to the accused before the accused is asked to plead to the charge. Subsection 62(2) provides that it is not necessary that the charge be read, or its substance explained, to an accused who is represented by a legal practitioner if the court considers it appropriate not to do so. A legal practitioner appearing for an accused may, on behalf of the accused, enter a plea.[22]
[22]Ibid s 63.
After the close of the prosecution case, an accused is entitled to make a no-case submission; answer the charge by electing whether or not to give evidence or call witnesses or both; or not to give evidence or call any witnesses.[23] The court may question the legal practitioner to determine which options the accused elects to take.[24] In the event that the accused is not legally represented, the court must inform the accused, in a manner that is likely to be understood, as to the rights to give or not give evidence.[25]
[23]Ibid s 66.
[24]Ibid s 67.
[25]Ibid s 68.
It is also necessary to refer to the provisions of the CPA that deal with the attendance of the accused at court. It may be accepted that a person charged with a criminal offence has a right to be present in court when the matter is dealt with.[26] It is not necessary to consider the circumstances in which that right may be curtailed. In addition to the right to attend, an accused person may, and in many circumstances will, be required to attend court when his or her matter is dealt with.
[26]R v Serrano[No 5] (2007) 16 VR 360, 362–3 [24]; [2007] VSC 209 (Kaye J); R v Benbrika [No 20] (2008) 18 VR 410; [2008] VSC 80, [88] (Bongiorno J); Charter of Human Rights and Responsibilities Act 2006 s 25.
In this respect, the CPA draws a distinction between ‘appear’ and attend’. Section 328 provides that a party to a criminal proceeding may appear personally or by a legal practitioner. Section 329 provides that an accused must appear in every hearing in the criminal proceeding against the accused unless otherwise provided by the CPA or the rules of court. Section 329(3) provides that the court may excuse a person from appearing at a hearing.
Section 330(1) provides that an accused must attend the hearing in the criminal proceeding against the accused if attendance is required by the CPA or the rules; the accused has been remanded in custody or granted bail to attend the hearing; or the court requires the attendance of the accused at the hearing. Section 330(3) allows the court to excuse a person from attending a hearing.
The source of the obligation to attend court may be found in a summons or as a condition of bail. Further, as recognised by s 330, the CPA requires the attendance of the accused in certain circumstances. As already noted, s 55(4) requires an accused person to attend all contest mention hearings and there is no corresponding express obligation in respect of mentions and summary case conferences.
Ground 1
Must an accused be present at the time consent is given?
The appellant submits that she did not consent to summary jurisdiction in accordance with the CPA. First, she submits that properly construed, s 29(1)(b) requires that consent be given in court in the presence of the accused. This did not occur.
The appellant submits that in respect of indictable offences, the premise on which s 29 is based, is that the accused person will be required to attend court as a condition of bail and it follows that the section assumes, and requires, that the accused person be present in court at the time consent to summary jurisdiction is given. The appellant submits that when her solicitor, acting on instructions, told the magistrate that the appellant consented to summary jurisdiction, that was no more than a provisional indication that could be used for the future programing of the matter but consent could not be formalised in the absence of the appellant.
The main issue presented by ground 1 is whether the appellant consented to summary jurisdiction before 19 March 2019 and it turns on the construction of s 29 of the CPA. As initially formulated, the appellant argued that the magistrate’s erroneous recollection on 19 March 2019 that the appellant had been present when consent was given in March 2018 was relevant to the question of consent. However, ultimately, she acknowledged that any error made by the magistrate in March 2019 could not change the factual or legal consequence of what had happened a year before that date: the appellant either validly consented in March 2018 through her solicitor or she did not. The magistrate’s later recollection at most reflected the magistrate’s understanding of what had occurred on the earlier occasion.
Second, she submits that the decision to proceed summarily must be reflected in an order made after consideration of the matters in s 29(2). She submits that this did not occur before her counsel indicated to the Court on 19 March 2019 that she did not consent to summary jurisdiction.
I accept that as a matter of practice, and as a matter of principle, an accused person charged with an indictable offence will generally be required to attend court when his or her matter is dealt with because this will usually be required as a condition of bail. The accused will generally be required to answer bail on each occasion by attending court. The issue is whether, based on that premise, as a matter of construction, s 29 of the CPA requires that consent to summary jurisdiction can only be given on an occasion when the accused attends court.
The first point is that s 29 does not expressly require that the accused person attend court at the time that consent is given. Section 29(3) applies where an accused appears through his or her lawyer. It does require that a legal practitioner appear and the practitioner may ‘on behalf of the accused’ consent to a summary hearing. Given the clear distinction between attending and appearing, and the fact that consent is given on behalf of the accused, I would not imply a requirement that the accused attend court for that purpose. The requirement for the lawyer to be appearing for the accused suggests that it be done in open court and this is what occurred in this case.
Section 329 requires that the accused appear at every hearing but it does not require that an accused attend every hearing. An accused could indicate consent to summary jurisdiction at any one of the preliminary hearings contemplated by the CPA: a mention hearing, summary case conference or a contest mention hearing. As noted, the CPA requires that an accused attend all contest mention hearings but not the other types of hearing. Further, the court may excuse an accused person from appearing or attending a hearing. It follows that, as happened in this case on 26 March 2018, an accused may appear but not attend court.
It is also relevant that, unlike in earlier forms of the relevant legislation, it is no longer necessary that consent be expressed to the magistrate before whom the charges are to be heard.[27] The earlier form of the provisions found in the Magistrates’ Court Act 1971 were considered by this Court in McKay v Tankard.[28] Section 70 of that Act enabled an accused person to consent to an indictable offence being disposed of summarily. It provided:
[27]Clayton v Hall [2008] VSC 172, [19] (Kaye J); McKay v Tankard [1987] VR 381, 384 (Southwell J).
[28][1987] VR 381.
Where the Court before which a person is charged as aforesaid proposes, either —
(a)on the application of the prosecutor before the hearing of any evidence … ; or
(b)on the application of the prosecutor or the person charged or on the motion of the Court at any time during or immediately after the hearing of the evidence for the prosecution —
to dispose of the case summarily under the provisions of s 69 one of the justices shall state to such person the substances of the charge against him and shall then say to him these words or words to the like effect —
‘Do you consent that the charge against you shall be tried by us or do you desire that it shall be sent for trial by a jury’
and if the person charged consents to the charge being summarily tried and determined as aforesaid he shall then be asked how he pleads to the charge and the Court shall proceed to deal with the case summarily.
Southwell J held that s 70 required that the defendant give his consent to the court before whom the defendant was formally charged. In its terms it required the court to address the accused directly. That is no longer the position.
Given the structure of the CPA, and the bifurcation in procedure between those cases that are to be heard and determined summarily and those that are to be the subject of a committal, it is likely that decisions as to whether an indictable offence will be tried summarily will be made at an early stage of the proceeding. In the absence of consent to summary jurisdiction, other than where a direct indictment is filed, a committal proceeding must be held in respect of all indictable offences.[29]
[29]CPA s 96.
Whether or not the accused consents to summary jurisdiction will not be a matter for argument or complexity. It is an important matter but it is largely one for the accused. Section 29(2) sets out certain considerations to which a magistrate must have regard in considering whether or not it is appropriate for charges to be determined summarily, including the seriousness of the alleged offences and the complexity of the issues. The CPA does not require that the magistrate consider these matters as part of being satisfied that the accused consents to summary jurisdiction. That is not surprising. A magistrate is not required to go behind the accused’s consent and assess whether, from the point of view of the accused, providing consent was wise or a good or bad forensic decision.
The CPA provides, in a number of important respects, that a legal representative can communicate to the court on behalf of his or her client. Those respects include giving consent to summary jurisdiction for indictable offences,[30] entering a plea of guilty or not guilty[31] and whether or not the accused elects to give evidence or call witnesses.[32] Where the accused is not represented, the CPA requires the court to ensure that the accused person understands the plea and the right to give or not give evidence. Where the court is required to address the accused directly, the CPA provides so expressly. For example, the express requirement in s 62(1) to read the charge before the plea has no counterpart in s 29.
[30]Ibid s 29(3).
[31]Ibid s 63.
[32]Ibid s 67.
Consent is an essential condition for the exercise of summary jurisdiction and must be freely and genuinely given. Of course, the magistrate must be satisfied that the consent is genuine and it may be prudent to ensure that the accused is present when that occurs. However, absent some good reason, the magistrate is entitled to proceed on the basis of consent as communicated by the accused’s lawyer. That is expressly provided for in s 29(3). It would cut across that provision if s 29 were construed as requiring that the accused give the consent personally. No doubt, s 29(3) proceeds on the basis that the lawyer will have instructions from the accused to consent to summary jurisdiction and will have given advice to his or her client about the different jurisdictions.
The construction I favour does not undermine any rights of the accused. In the event that the accused has not given informed instructions to his or her lawyer to consent to summary jurisdiction, there will be no valid consent or the consent will be able to be withdrawn. In the event that the accused later says that he or she was confused, or unsure when he or she instructed the lawyer to provide consent, but not to the extent of invalidating the consent, then those matters may be canvassed on an application for leave to withdraw consent. However, I would not construe s 29 as having the effect that consent can only be effective if given in the presence of the accused or if later ratified by the accused. A consent to summary jurisdiction given by a lawyer on instructions is not conditional.
It follows that I reject the first argument in favour of ground 1.
Is a formal order required?
As a second aspect of ground 1, the appellant submits that no order was made reflecting a decision to accept summary jurisdiction.
Although the argument centred around the question of consent, the appellant’s argument that an order was required also involved a contention that in this case the magistrate had not turned his mind to the s 29(2) matters on 26 March 2018 and therefore summary jurisdiction could not have been enlivened at that point.
It must be accepted that before jurisdiction can be exercised to hear and determine an indictable offence summarily, a magistrate must bring an independent mind to the question of whether the charge is appropriate to be determined summarily. In arriving at that decision, the magistrate must have regard to the matters in s 29(2).
To the extent that the appellant’s submission amounts to a contention that a formal order must be made and entered into the records of the court in order for summary jurisdiction to be enlivened, I reject it. There is nothing in the Magistrates’ Court Act 1989 or in the CPA which requires that a decision to proceed summarily, once the preconditions are satisfied, must be reflected in a written order in those terms. In the present case, it appears there was a notation placed on the file and a recording of the hearing was also made. In my view, no formal written order was required.
Whether a decision to accept summary jurisdiction, or a decision to decline summary jurisdiction on the basis that the charges are not appropriate to be heard summarily, amounts to an order depends on the purpose for which the question is asked. In Hall v Braybrook,[33] the High Court considered whether a decision to refer the matter for trial that was part heard as a summary proceeding because the magistrate became aware of prior convictions of the accused which rendered the matter more serious, was an order for the purposes of appeal. In Maya v DPP, the Court of Appeal held that it was not in dispute that a magistrate’s decision to grant summary jurisdiction was amenable to challenge either under s 109 of the Magistrates’ Court Act1989 or under O 56 of the Supreme Court (General Civil Procedure) Rules2015.[34]
[33](1956) 95 CLR 620.
[34][2019] VSCA 117, [27] (Maxwell P, Beach and Weinberg JJA).
It is not necessary in this case to determine the nature of the decision of a magistrate to assume jurisdiction and whether it is an order for the purposes of an appeal. It is enough to dispose of the argument to note that its efficacy did not depend on it being registered or entered.
I note that in Williams v Hand, McDonald J referred to an order having been made for an indictable offence to be heard summarily and held that that having occurred, a different magistrate was not empowered to set aside the order.[35] In that case, the first magistrate concluded that summary jurisdiction was appropriate. It appears that no separate order was made to that effect but was comprehended by the order remanding the accused to Frankston Magistrates’ Court for a contested hearing. It follows that Williams v Hand does not establish that a formal order was required to be entered.
[35][2014] VSC 527, [47].
If the submission is that before jurisdiction is enlivened to hear and determine the charge, the court must make a decision to accept summary jurisdiction, then I would agree. However, provided that the accused has given consent, it is a matter for the court to be satisfied that it is appropriate for the charges to be dealt with summarily. In deciding whether a charge may be heard and determined summarily, the court can act on the basis of the consent unless it is withdrawn.[36] An accused person can only withdraw consent with the leave of the court. It follows that although the court will usually address the question as to the suitability of summary disposition at the time consent is communicated, there is no mandatory requirement that this be so. In effect, unless withdrawn with leave, consent is continuing.
[36]Clayton v Hall [2008] VSC 172, [15] (Kaye J).
The court is only required to satisfy itself that it has jurisdiction under s 28 when it embarks on the hearing and determination of the charge. Equally, it can exercise that jurisdiction, in an appropriate case, right up until the time an order for a committal is made. Of course, in practice, that determination will be made much earlier. It follows that if the appellant consented to summary jurisdiction on 26 March 2018, the court had jurisdiction to try the charges summarily provided that the court regarded it as appropriate and had not given the appellant leave to withdraw her consent.[37]
[37]Ibid [20].
I am satisfied that on 26 March 2018 the appellant, through her solicitor and in her absence, consented to the charges being determined summarily. I am also satisfied that on that occasion the magistrate determined that it was appropriate for the charges to be heard summarily. I reach that conclusion because the magistrate remanded the appellant to the Magistrates’ Court at Horsham on 27 April 2018 for a mention, and the charges were patently suitable for summary disposition. Indeed, in the course of argument, the appellant accepted that charges of this nature with limited complexity are dealt with in the Magistrates’ Court on a daily basis. There were four charges of theft (and four alternative charges of obtaining property by deception) in the amount of $794, $2,340, $440, $548, respectively, for which the available penalties in the Magistrates’ Court were obviously adequate. As at March 2018, given the appellant’s consent, and the concurrence of the prosecution, the question of whether a summary hearing was appropriate admitted of only one answer. Any contrary conclusion in the light of the facts would have been perverse.
The appellant correctly points out that there was no discussion on 26 March 2018 of the appropriateness of the charges proceeding summarily; however, given the routine nature of the decision and the obvious suitability of these charges to be dealt with summarily, I am persuaded that the magistrate turned his mind to the relevant question and considered it appropriate that the charges be dealt with summarily. On a question on which she bears the onus, the appellant has not satisfied me that the magistrate failed to have regard to the matters that were required to be taken into account in accordance with s 29(2).
I am satisfied that when the magistrate made a notation indicating that summary jurisdiction had been entered he had decided that the matter was appropriate for a summary hearing and a decision or ruling was made. It follows that the appellant consented to summary jurisdiction on 26 March 2018 and no separate or formal order in writing was required. It also follows that the appellant had the benefit of that decision.[38] In any event, there can be no doubt that at the time of the hearing of the charges on 19 March 2019, the magistrate again turned his mind to the question of jurisdiction and considered it appropriate to determine the charges summarily.
[38]Maya v DPP [2019] VSCA 117.
Ground 2
The next issue is whether the magistrate committed an error of law in refusing leave to the appellant to withdraw her consent to summary jurisdiction. That is the subject of ground 2, to which I now turn.
An accused person who has consented to jurisdiction may, with the leave of the court, withdraw his or her consent.[39] The discretion to permit an accused person to withdraw consent is not conditioned on any requirement that the accused establish special or exceptional circumstances. The discretion is to be exercised having regard to the justice of the case. In Clayton v Hall, Kaye J applied English authority holding that the discretion is to be exercised by reference to the ‘broad justice of the whole situation’[40] and that ‘the appropriate consideration was whether it was in the “interests of justice” that the defendant, having ill-advisedly given his consent to abandon his right to trial by jury, should be given the opportunity to reconsider the matter.’[41]
[39]Clayton v Hall [2008] VSC 172, [21]–[23] (Kaye JA).
[40]Ibid [21], citing R v Southampton Justices Ex Parte Briggs [1972] 1 WLR 277, 280.
[41]Ibid [23], citing R v Craske [1957] 2 QB 591, 600.
The appellant submits that the magistrate made a fundamental error in his recollection of the events on 26 March 2018. I accept that, prompted by his note from the earlier occasion, the magistrate assumed wrongly that the appellant was present at the time consent was given and summary jurisdiction entered and that he had adopted his usual practice of explaining the rights to proceed to trial by jury.
I have already explained that this error casts no shadow over the events of 26 March 2018 and could not alter the fact that the appellant consented to summary jurisdiction. The issue is whether the error affected the exercise of the discretion to permit consent to be withdrawn. I am satisfied that it had no impact on the discretion.
The issue of whether the appellant was present on 26 March 2018 and whether the magistrate had explained to her the nature of the choice between a summary hearing and trial by jury was irrelevant once the appellant accepted in her evidence that she had instructed her lawyer to consent to summary jurisdiction after receiving advice as to the seriousness of the allegations, the complexity of the issues and which of the two potential jurisdictions was appropriate.
At no time in her evidence did the appellant say or suggest that her decision to instruct her lawyer to consent to summary jurisdiction on her behalf was affected by any lack of understanding on her part. Indeed, the evidence was unequivocal that although the decision to consent to summary jurisdiction was a considered one, circumstances had changed with the provision of recent material and the content of more recent legal advice.
It was no part of the application to withdraw consent that it had been given on an uninformed basis. It was accepted in argument before me that the lawyer had informed instructions to consent on behalf of the appellant. It follows that the magistrate’s erroneous recollection did not infect the decision to refuse leave. Whether the appellant was present at the hearing on 26 March 2018 was irrelevant to her submission that leave should be given.
Further, the magistrate’s observation that the appellant had formally entered consent to summary jurisdiction was not erroneous. The appellant appeared by her solicitor who expressly put on the record that she consented to summary jurisdiction. It was not inapt to regard consent as being formally entered.
The appellant next fastens on the statement by the magistrate in his reasons for refusing leave that the existence of the right to a jury was not relevant to the leave application he was considering. Read fairly, the magistrate was saying no more than she did not have an unfettered right to a jury trial because the appellant had consented and the Court had determined to proceed summarily. Section 30(6) of the CPA provides that if the Magistrates’ Court grants a summary hearing, the hearing and determination of the charge must be conducted in accordance with pt 3.3.
The appellant had to persuade the magistrate that the justice of the case required that she be permitted to change course. The magistrate referred to Clayton v Hall[42] and correctly stated that the test was a broad one based on the justice of the circumstances. I am not persuaded that the magistrate misunderstood the nature of the application or the importance of a right to a jury trial. The magistrate grappled with the arguments as to why leave should be given.
[42][2008] VSC 172.
In considering the application, the magistrate considered the evidence and arguments the appellant advanced as to why a jury trial would be preferable. The magistrate rejected the argument that the prosecution had a new case and did not accept that the complexity or seriousness of the case made a jury trial the appropriate forum for the hearing and determination of the charges.
The magistrate also made the point, as he was entitled to do, that having consented to summary jurisdiction and having the matter prepared for hearing, it would be a grave waste of resources to send the matter for trial.
Finally, the appellant relies on the suggestion of the magistrate that the matters in s 29(2) were not relevant to this decision. Again, the magistrate was not being called to decide afresh whether it was appropriate to have the matter determined summarily. That had already been done. However, it is clear from his reasons that he did consider the matters in s 29(2), at least to the extent that they were relied on by the appellant.
There was no error of law involved in the magistrate’s decision to refuse leave to withdraw consent. There was no error of law in hearing and determining the charges summarily.
Ground 4
The appellant was convicted on three charges of theft from her employer, at a Coles Liquorland store. The prosecution case was that, on the relevant days, she had attended work at the Coles Liquorland store in Horsham although she was not rostered to work. She then used the store’s point of sale equipment to electronically process fake refunds directly to her personal credit card or bank account. The money which she stole belonged to her employer.
At some point the appellant falsely contended that the area manager for Coles Liquorland, Michael Leehane, was responsible for illegal conduct as a means of avoiding being investigated. Leehane gave evidence that he was authorised to speak on behalf of the victim in this proceeding.
Leehane completed a VIS which was tendered on the plea. In it he said that because of the accusations he had to defend himself with legal representation to save his job when he had done nothing untoward. During the time of over two years for the matter to come to Court, he had developed severe anxiety which resulted in him having a racing heart for which was hospitalised and had to have a ‘cardioversion to repair’. He said that he was still in medical care for his condition.
The magistrate did not refer to the VIS in the course of sentencing the appellant. After his Honour delivered reasons sentence, he made a forensic sample order. Finally, he referred to the VIS and said: ‘I have made no reference to it … I didn’t ignore it, but … it looms … it’s not … as great as significance … level of significance as in other cases.’
Section 5(2) of the Sentencing Act relevantly provides that in sentencing an offender a court must have regard to the impact of the offence on any victim of the offence;[43] the personal circumstances of any victim of the offence;[44] and any injury, loss or damage resulting directly from the offence.[45]
[43]Sentencing Act s 5(2)(daa).
[44]Ibid s 5(2)(da).
[45]Ibid s 5(2)(daa)–(db).
Section 8K(1) of the Sentencing Act provides that if a court finds a person guilty of an offence, a ‘victim’ of the offence may make a statement to the court for the purpose of assisting in the determination of sentence. ‘Victim’ is defined to mean: ‘a person who … has suffered injury, loss or damage (including grief, distress, trauma or other significant adverse effect) as a direct result of the offence …’.[46]
[46]Ibid s 3(1).
In The Queen v Miller, the Court of Criminal Appeal held that the court should not strive to put a narrow interpretation of the meaning of the words ‘victim’ and ‘injury’.[47]
[47](1995) 2 VR 348, 354 (Southwell, Ormiston and McDonald JJ) (‘Miller’).
After referring to Miller, Priest JA in Berichon v The Queen observed:
I am conscious of the admonition of the Court of Criminal Appeal in Miller that a court should not strive to put a narrow interpretation on ‘victim’. Presumably, however, the adjective ‘direct’ in the definition of ‘victim’ must have some work to do. It might justifiably be thought that it is embodied in the definition of ‘victim’ so as to make plain that tenuous or remote injury, loss or damage resulting from an offence does not render a person a victim. Self-evidently, whether a person relevantly is a ‘victim’ will sometimes — perhaps often — be a matter of fact and degree. In this case, there is much to be said for the proposition that any distress suffered by the occupants as a ‘result of the offence’ was indirect. [48]
[48](2013) 40 VR 490, 498 [36]; [2013] VSCA 319 (citations omitted).
A victim need not be present at the time of the offence and may find out about it sometime later.[49] In my view, it is open to regard someone who is falsely implicated by an offender in wrongdoing in an attempt to avoid detection, as capable of falling within the definition of a ‘victim’. Conduct that is designed to deflect attention or false accusations are properly seen as part of the general circumstances relevant to sentence. It takes no stretch of language to regard someone who is harmed as a result of a false accusation made by an offender to be regarded as a ‘victim’ of the offence.
[49]Ibid 495 [20] (Redlich JA), 511 [127] (Robson AJA).
Even if I were persuaded that Leehane could not have properly been regarded as a ‘victim’ within the meaning of s 3(1) of the Sentencing Act, in my view, any error in receiving the VIS had no effect on sentence. The magistrate did not mention the statement or the impact on Leehane in his reasons for sentence.
Conclusion
None of the grounds of appeal have been made out. I would dismiss the appeal.
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