JUDGE:	CAVANOUGH J
WHERE HELD:	Melbourne
DATE OF HEARING:	7 & 8 November 2011; last written submission received 6 December 2011
DATE OF JUDGMENT:	21 December 2012
CASE MAY BE CITED AS:	Tsolacis v McKinnon
MEDIUM NEUTRAL CITATION:	[2012] VSC 627

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CRIMINAL LAW – Appeal from Magistrates’ Court on questions of law – Infringement notice alleging use of unregistered motor vehicle contrary to s 7 Road Safety Act 1986 – Referral to Magistrates’ Court – Whether open to magistrate to find charge proven on the basis of a purported certificate under s 84 Road Safety Act 1986 that did not contain all prescribed particulars – Whether absolute liability offence – Whether defence of honest and reasonable mistake of fact available – Appeal allowed on certificate point only – Road Safety Act 1986 ss 7, 84; Interpretation of Legislation Act 1984, s 53; Sentencing Act 1991, s 76; Criminal Procedure Act 2009, s 272; Infringements Act 2006.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr G. Tsolacis, in person
For the Defendant	Mr M. Roper	Mr C. Hyland, Solicitor for Public Prosecutions

HIS HONOUR:

Introduction and overview

This is an appeal pursuant to s 272 of the Criminal Procedure Act 2009 from a decision of the Magistrates’ Court in a criminal proceeding. Such an appeal lies only on a question of law.

The proceeding in the Magistrates’ Court was preceded by the issue by the respondent, Senior Constable McKinnon, of an infringement notice under the Infringements Act 2006 to the appellant, Mr George Tsolacis. The infringement notice alleged that Mr Tsolacis had on 22 July 2009 driven an unregistered motor vehicle on a highway contrary to s 7(1)(a) of the Road Safety Act 1986 (RSA). Ultimately a charge to that effect was brought before the Magistrates’ Court for a contested hearing. On 18 April 2011, his Honour Magistrate Garnett found the charge proven but, on the basis that there were extenuating circumstances, and with strong encouragement from the prosecutor, his Honour deemed the matter to be trivial and dismissed the charge under s 76 of the Sentencing Act 1991. No penalty was imposed.

Mr Tsolacis is not satisfied with that result. He says that the charge should not have been found proven and should have been dismissed outright, not under s 76. As recorded in the register of the Magistrates’ Court, the order made was “DISMISSED UNDER SN 76 SENTENCING ACT”. The reference in the order itself to s 76 of the Sentencing Act 1991 shows that the Court was satisfied that Mr Tsolacis was guilty of the offence. The order was a final order of the Magistrates’ Court. Mr Tsolacis is thus entitled to appeal against it under s 272 of the Criminal Procedure Act 2009.

Mr Tsolacis has represented himself throughout,…

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 Tsolacis v McKinnon

Details

AGLC: Tsolacis v McKinnon [2012] VSC 627
Case: [2012] VSC 627
Decision Date: 21 December 2012

CaseChat Overview and Summary

The case of Tsolacis v McKinnon arose from an appeal against a decision made in the Magistrates' Court of Victoria, where the appellant, Tsolacis, contested an infringement notice issued under the Road Safety Act 1986. The primary dispute centred on the validity of the infringement notice which alleged that Tsolacis had used a motor vehicle that was not registered. This matter was referred to the Magistrates' Court, which found the charge proven based on a certificate issued under section 84 of the Act. The certificate, however, did not contain all the prescribed particulars as required by the relevant legislation.

The central legal issues in this case involved the interpretation and application of sections 7 and 84 of the Road Safety Act 1986, specifically whether the magistrate was justified in finding the charge proven based on a certificate that was not in full compliance with statutory requirements. Additionally, the court had to determine whether the offence of using an unregistered vehicle was one of absolute liability, and if so, whether this precluded the availability of the defence of honest and reasonable mistake of fact.

The Court of Appeal found that the certificate in question did not comply with the prescribed particulars as mandated by the Interpretation of Legislation Act 1984. Given that the certificate was a fundamental piece of evidence relied upon by the magistrate to find the charge proven, the Court held that this rendered the proceedings flawed. The Court concluded that the magistrate's decision was based on an invalid certificate, thus the appeal was allowed solely on the basis of the procedural error in the certificate. The Court did not address the questions of absolute liability or the availability of the defence of honest and reasonable mistake of fact, as these issues were not central to the outcome of the appeal.

The final orders of the court were that the appeal be allowed on the grounds that the certificate did not contain all the prescribed particulars, and the conviction and penalty imposed by the Magistrates' Court were quashed. The matter was remitted to the Magistrates' Court for further consideration in light of the certificate's invalidity.

Orders