| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
No. SCI 2011 02335
| GEORGE TSOLACIS | Appellant |
| v | |
| SENIOR CONSTABLE CALLUM McKINNON | Respondent |
---
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 | |
---
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.
---
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,…
Continue reading Tsolacis v McKinnon
Sign in free to access the full text
- AGLC
- Tsolacis v McKinnon [2012] VSC 627
- Case
- [2012] VSC 627
- Decision Date
CaseChat Overview and Summary
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
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.