Venosta v Murdoch
[2019] VMC 2
•26 April 2019
IN THE MAGISTRATES’ COURT OF VICTORIA
AT LATROBE VALLEY
CRIMINAL DIVISION OF COURT
Case No. G13298167
| LSC VENOSTA | Informant |
| v | |
| CHRISTOPHER MURDOCH | Accused |
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MAGISTRATE: | S GARNETT |
WHERE HELD: | WONTHAGGI and LATROBE VALLEY |
DATE OF HEARING: | 15 JUNE 2018 & 2 APRIL 2019 |
DATE OF DECISION: | 26 April 2019 |
CASE MAY BE CITED AS: | Venosta v Murdoch |
MEDIUM NEUTRAL CITATION: | [2019] VMC002 |
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CATCHWORDS – Jurisdiction of court to determine charges under Road Safety Act 1986 – Whether the informant signed the charge sheet and summons - Whether charge sheet and summons filed within 7 days at the proper venue – Whether the informant personally filed and mailed charge sheet and summons within 7 days at the proper venue – Whether the summons is invalid by directing the accused to appear at a venue of the court other than where it was issued – Criminal Procedure Act 2009 ss 3, 5, 6, 7, 10, 11, 14, 15, 31; Magistrates’ Court Act 1989 ss 3, 5A, 136; Magistrates’ Court Criminal Procedure Rules 2009 R5, R10; Victorian Government Gazette 24 December 1998 3246 G51; Road Safety Act 1986 ss 7(1)(a), s 49(1)(b), s 49(1)(f).
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APPEARANCES: | Counsel | Solicitors |
| For the Informant | Sgt Bridson | Vpol |
| For the Accused | Mr Walsh-Buckley | Patten Robins Lawyers |
HIS HONOUR:
It is alleged that the accused;
(1) At Kilcunda on 1 November 2016, did drive a motor vehicle while more than the prescribed concentration of alcohol was present in his breath being .05 grams per 210 litres of exhaled air (Alleged Reading 0.177) contrary to s 49(1)(b) of the Road Safety Act 1986.
(2) At Wonthaggi did within three hours after driving a motor vehicle furnish a sample of breath for analysis by a breath analysing instrument pursuant to section 55 of the Road Safety Act 1986 and the result of the analysis recorded or shown by the breath analysing instrument indicated that more than the prescribed concentration of alcohol being .05 grams per 210 litres of exhaled air was present in his breath and the concentration of alcohol indicated by the analysis to be present in his breath was not due solely to the consumption of alcohol after driving or being in charge of the motor vehicle contrary to s 49(1)(f) of the Road Safety Act 1986. (Alleged Reading 0.177)
(3) At Kilcunda on 1 November 2016 did use a motor vehicle on a highway namely Bass Highway Kilcunda such motor vehicle not being registered as required by Part 2 of the Road Safety Act 1986 and not exempt from registration under the regulations contrary to s 7(1)(a) of the Road Safety Act 1986.
On its face, the charge sheet and summons were purportedly issued and signed by LSC Venosta on 30 November 2016 at San Remo and purportedly caused to be filed at Korumburra on that date. The method of filing and date of filing on the charge sheet and summons were left blank but contain a stamp that it was received at the Wonthaggi Magistrates’ Court on 2 December 2016. The charge sheet and summons directed the accused to attend Korumburra Magistrates’ Court on 11 May 2017.
Mr Murdoch appeared at the hearing “under protest” and made application to have the charge and summons struck out as he took issue with;
(i) whether LSC Venosta signed the charge sheet and summons;
(ii) whether the charge sheet and summons were filed within seven days at the proper venue, being Korumburra;
(iii) whether LSC Venosta personally filed or personally mailed the charge sheet and summons within seven days at the proper venue, being Korumburra; and
(iv) whether the summons is invalid by virtue of the fact that if Wonthaggi Magistrates’ Court is the correct venue, the summons directed the accused to attend the incorrect venue, being Korumburra Magistrates’ Court.
The court was greatly assisted by written submissions filed on behalf of the accused by Mr Walsh-Buckley and on behalf of the prosecution by Sgt Bridson. Neither party referred the court to any previous decisions on the ‘technical issues’ raised in the proceeding.
LSC Venosta gave evidence that he is the informant in this matter. He told the court that he personally signed both the charge sheet and summons. He said that he caused the charge sheet and summons to be filed at the Wonthaggi Magistrates’ Court on 2 December 2016 and that he also completed and signed the Affidavit of Service of charge sheet and summons on 30 November 2016 by sending a copy of the document by prepaid ordinary post to the accused’s last known place of residence in Thornbury.
LSC Venosta disputed the suggestions made to him by reference to signatures appearing on the tendered ‘Combination Interview Notes’ and ‘Preliminary Brief – Signed Statement by Informant’ that he did not in fact sign the charge sheet and summons but he conceded that he has no personal memory of signing the charge sheet and summons.
LSC Venosta also told the court that he has no memory of filing the charge sheet and summons and conceded that the method of filing and date filed were left blank on the charge sheet and summons. Although not being able to recall filing the document, he said that according to the charge sheet and summons it was filed at Korumburra Magistrates’ Court although he acknowledged the stamp on the document indicated that the charge sheet and summons were filed at Wonthaggi Magistrates’ Court on 2 December 2016.
Did the informant sign the charge sheet and summons in accordance with s 14 of the Criminal Procedure Act 2009 (CPA)?
s 14(1) of the CPA provides that a police officer may, after signing a charge sheet containing a charge, issue a summons to answer to the charge. S 14(2) provides that if a police officer issues a summons under subsection (1), he or she must file the charge sheet and summons with the appropriate registrar within 7 days after signing the charge sheet. S 14(3) provides that if it appears to the Magistrates’ Court that subsection (2) has not been complied with in relation to a proceeding, the court may strike out the charge. S 6 (3) of the Act provides that a charge sheet must be in writing and be signed by the informant personally.
In the present case, despite there being some differences in the signature of the informant when inspecting the signature that appears on the charge sheet, the summons, the ‘Combination Interview Notes’ and ‘Preliminary Brief – Statement By Informant’, I accept as truthful the evidence given by LSC Venosta that it is his signature as identified by him on each of the documents referred to notwithstanding that a comparison of the signatures indicate a variance in style, length and size.
Was the charge sheet and summons filed within 7 days at the proper venue?
The alleged offences occurred on 1 November 2016 at Kilcunda (charge 1), Wonthaggi (charge 2) and Kilcunda (charge 3). In accordance with s 11(1) of the CPA, a criminal proceeding in the Magistrates’ Court is to be heard at the venue of the court that is nearest to –
(a) the place where the offence is alleged to have been committed; or
(b) the place of the residents of the accused –
except where otherwise provided by this or any other Act or by a nomination under subsection (2).
Subsection (2) provides that;
The Chief Magistrate may from time to time, by notice published in the Government Gazette, nominate a venue of the Magistrates’ Court as a venue for the hearing of a specified criminal proceeding or a specified class of criminal proceeding.
Subsection (3) provides that;
A criminal proceeding in the Magistrates’ Court is not invalid only because it was conducted at a venue of the court other than the venue referred to in subsection (1) or nominated under subsection (2).
‘Proper Venue’ is defined in s 3 of the Magistrates Court Act 1989 (MCA) as …. in relation to a criminal proceeding or a class of criminal proceeding, means the mention court that has been nominated by the Chief Magistrate under s 5A for the proceeding or class of proceeding, but in the absence of any such nomination is the mention court that is nearest to –
(i) the place where the offence is alleged to have been committed; or
(ii) the place of residence of the accused.
In the present case, the accused resides in Thornbury where the proper venue would be the Melbourne Magistrates’ Court. Alternatively, the places of alleged offending are Kilcunda and Wonthaggi, the nearest Magistrates’ Court being the Wonthaggi Magistrates’ Court. However, s 10 of the CPA provides that where a charge sheet contains a charge for a summary offence (as in the present case), the proceeding must be listed for a ‘mention’ hearing. ‘Mention Court’ is defined in s 3 of the MCA to mean a venue of the court that is nominated by the Chief Magistrate under section 5A as a mention court.
S 5A of the MCA provides that; The Chief Magistrate may from time to time, by notice published in the Government Gazette, nominate a venue of the court as a mention court, whether generally or for a particular class of proceeding.
In the present case, Wonthaggi Magistrates’ Court is not gazetted as a ‘mention’ court whereas Korumburra Magistrates’ Court is pursuant to the Victorian Government Gazette 24 December 1998 – 3246 G51. The accused submitted that whilst the charge sheet and summons is date stamped 2 December 2016 at Wonthaggi Magistrates’ Court and was filed within seven days of the signing of the charge sheet and summons (30 November 2016) it directs him to go to the ‘proper venue’, being the Korumburra Magistrates’ Court (a mention court) whereas in fact it was filed at the Wonthaggi Magistrates’ Court, being the wrong venue. The accused refers to the definition of ‘appropriate registrar’ in s 3 of the CPA which states;
(a) the registrar at the venue of the Magistrates’ Court referred to in s 11; or
(b) if an order is made under s 31, the registrar at the venue of the Magistrates’ Court at which the hearing is to be held.
The accused also referred to s 31 of the CPA which provides;
If the Magistrates’ Court considers that –
(a) a fair hearing in a criminal proceeding cannot otherwise be had; or
(b) for any other reason it is appropriate to do so –
the court may order that the hearing be held at another place or venue of the court that the court considers appropriate.
The accused submitted that s 31 is not relevant because it envisages a proceeding that is validly commenced under s 6(1)(c) of the CPA. He further submitted that s 11(3) does not operate because it is contingent upon the proceeding having been ‘conducted’ which has not occurred in the present case. The accused submitted that as correct filing of the proceeding has not occurred, the court does not have jurisdiction over the proceedings.
In response, the prosecution submitted that LSC Venosta did properly file a copy of the charge sheet and summons within 7 days as provided by s 14 of the CPA in the registry at the Wonthaggi Magistrates’ Court on 2 December 2016. The prosecution submitted that the closest court to the place of the alleged offending is the Wonthaggi Magistrates’ Court, which would mean the place of ‘hearing’ is to be the Wonthaggi Magistrates’ Court. The prosecution noted that ‘summary hearing’ as defined in s 3 of the CPA; means a hearing conducted in accordance with Part 3.3 (s56-87), which does not describe the venue at which a summary hearing is to be held. The prosecution also noted that in accordance with s 10(1) of the CPA, the proceeding must be listed for a mention hearing but it is silent on whether the place of hearing must be a ‘mention court’ as described in the Government Gazette. The prosecution contended that the informant has complied with s 14(1) of the CPA as he filed the charge sheet and summons at the registry and with the ‘appropriate registrar’ of the court closest to where the alleged offending occurred. The prosecution submitted that the court may, in accordance with s 31(b) of the CPA, change the place of hearing, which, in the present case, permits the court to transfer the proceeding to the Wonthaggi Magistrates’ Court for hearing once it has been ‘mentioned’ at the Korumburra Magistrates’ Court. There is no issue that the ‘appropriate registrar’ received the charge sheet and summons at the Wonthaggi Magistrates’ Court and complied with Rule 10 of the Magistrates’ Court Criminal Procedure Rules 2009 (MCCPR).
In relation to the ‘appropriate registrar’, the prosecution noted that in practice registrars who perform their duties at the Korumburra Magistrates’ Court also perform their duties at the Wonthaggi Magistrates’ Court in order to promote the efficient use of resources and the operation of regional courts in accordance with Rule 5 of the MCCPR. The prosecution also relies on s 11(3) of the CPA should the court find that the proceeding was listed erroneously at the Korumburra Magistrates’ Court on 11 May 2017.
I find that the charge sheet and summons were filed correctly when regard is had to the provisions of the CPA and MCA. The filing of the charge sheet and summons at the Wonthaggi Magistrates’ Court as indicated by the official stamp dated 2 December 2016 is the nearest court to the place where the alleged offending occurred. Ultimately, the proceeding was scheduled to be heard at that court as a contested hearing on 15 June 2018 after first being listed for a ‘mention hearing’ at the Korumburra Magistrates’ Court on 11 May 2017, 27 July 2017, 9 November 2017 and then as a ‘contest mention’ at the Wonthaggi Magistrates’ Court on 6 April 2018. The proceeding was subsequently transferred by the court as a part heard contested hearing to the Latrobe Valley Magistrates’ Court on 2 April 2019. I find that although filed in accordance with s 11(1)(a) of the CPA at the Wonthaggi Magistrates’ Court, by virtue of s 11(2), the court was permitted to first list the proceeding as a ‘mention’ hearing at Korumburra Magistrates’ Court in accordance with s 5A of the MCA.
I do not consider that the filing of the charge sheet and summons at the nearest venue (Wonthaggi Magistrates’ Court) pursuant to s 11(1)(a) of the CPA with the accused being directed to the Gazetted first mention hearing at Korumburra Magistrates’ Court invalidates the proceeding pursuant to s 14(2) & (3) having regards to the operation of s 11(3) of the CPA.
Whether LSC Venosta personally filed or personally mailed the charge sheet and summons within 7 days at the proper venue?
The accused submitted that the charge sheet and summons found by me to have been issued and signed by the informant on 30 November 2016 and filed at the Wonthaggi Magistrates’ Court on 2 December 2016 did not commence a proceeding pursuant to s 5(a) and s 6(1)(c) of the CPA because LSC Venosta did not personally file or personally mail the charge sheet and summons, contrary to s 14 (2). He submitted that there must be continuity between the charge signing officer (LSC Venosta) and the summons issuing officer (LSC Venosta) in accordance with s 14(1) of the CPA and the filing person in accordance with s 14(2) of the CPA. The accused submitted that there is no express power provided in s 14 of the CPA to delegate the filing function to another person.
The prosecution submitted that there can be no dispute on the facts that the charges have been filed. It notes that the Act is silent as to the method of filing. The prosecution contended that there is no irregularity. LSC Venosta gave evidence that he has no recollection of whether he personally filed or mailed the charge sheet and summons. I do not consider that there is a legal requirement that the informant personally file or mail the charge sheet and summons at the proper venue in order for a criminal proceeding to be validly commenced. To require it would place an unnecessary and cumbersome burden on individual police officers. What is legally required is that informants take the necessary steps to ensure that a charge sheet and summons is filed in accordance with the time limit in s 7(1)(a) of the CPA.
Whether the summons is invalid by virtue of the fact that if the Wonthaggi Magistrates’ Court is the correct venue, the summons directed the accused to attend the incorrect venue, being the Korumburra Magistrates’ Court?
The accused referred to Rule 10 of the MCCPR which provides:
Any document filed with the court shall be stamped by a registrar with the date and venue of the court.
The accused submitted that if the court was to find that Wonthaggi Magistrates’ Court was the correct venue (which it has), because the summons directs the accused to attend an incorrect venue (being Korumburra Magistrates’ Court) it is in breach of the mandatory provision of s 15(1) of the CPA.
S 15(1) provides:
A summons to answer to a charge must direct the accused to appear at the venue of the Magistrates’ Court referred to in section 11 on a specified date and at a specified time to answer the charge.
The accused submitted that because the summons directed him to appear at a different venue, the summons is invalid, leading to a denial of jurisdiction necessitating the charge and summons to be struck out pursuant to s 14(3) of the CPA as a valid proceeding has not been commenced within the 12-month limitation period as set out in s 7(1) of the CPA.
The prosecution submitted that any such invalidity is cured by the operation of s 11(3) of the CPA to which the accused contends cannot apply as the proceeding has not been ‘conducted’ which is a precondition of the operation of that section.
I find that the requirement in s 15(1) must be read as subject to s 11 which allows for certain courts to be designated as a venue for a specified class of criminal proceedings. In this case, a ‘mention court’. For operation and resourcing reasons, the Wonthaggi Magistrates’ Court is only open and staffed by ‘appropriate registrars’ on Tuesdays and Fridays of each week, with Friday being the scheduled sitting day. It is not gazetted to list criminal ‘mentions’ but matters are listed for ‘contest mentions’ and contested criminal hearings. The Korumburra Magistrates’ Court is open on Mondays, Wednesdays and Thursdays of each week, with Thursday being the scheduled sitting day. Criminal ‘mentions’ are listed on Thursday’s as it is a court that is gazetted to list such matters and contested criminal hearings are also listed on that day. It must be remembered that that the Magistrates’ Court is a single entity which is administratively operated from at several locations at different times. The listing of cases and the general arrangement of the business of the court are administrative functions and in accordance with s 136 of the MCA, the court may at any stage of a proceeding, give any direction for the conduct of the proceeding which it thinks is conducive to its effective, complete, prompt and economical determination. In order for the court to effectively and efficiently manage its caseload, some flexibility is required in the listing of matters in regional courts, hence the inclusion of s 11(3) and s 31 of the CPA. I do not consider that the direction to the accused to attend Korumburra Magistrates’ Court on 11 May 2017 invalidates the proceedings.
The accused also submitted that if the court was not prepared to strike out the summons under s 14(3) of the CPA, that it ought to order a permanent stay of the prosecution as an ‘abuse of process’ on the grounds of a fundamental defect in the originating process going to the root of the court’s jurisdiction. I am not persuaded to do so. I might also add that despite the matter being listed for mention on at least three occasions at Korumburra Magistrates’ Court prior to the 12 month limitation period expiring in accordance with s 7(1) of the CPA (including the appearance of counsel on 9 November 2017), the first indication of a challenge to the court’s jurisdiction and the reasons for it was not conveyed to the court and presumably the prosecution until the matter was listed as a ‘contest mention’ at the Wonthaggi Magistrates’ Court on 6 April 2018. If my conclusions on the technical issues raised were different, a question may have arisen as to whether the accused was disentitled to the relief he seeks for reasons of delay and/or acquiescence.
For the reasons given, I am not satisfied that the court is precluded from proceeding to hear and determine the charges on their merits.
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