JUDGE:	QUIGLEY J
WHERE HELD:	Melbourne
DATE OF HEARING:	5 December 2019
DATE OF JUDGMENT:	19 February 2020
CASE MAY BE CITED AS:	Wells v Stillman & Anor
MEDIUM NEUTRAL CITATION:	[2020] VSC 51

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JUDICIAL REVIEW – Validity of a charge – Whether failure to provide adequate particulars in a charge – Charge of accessing ‘police information’ without reasonable excuse – Order 56 – Certiorari to quash decision of Magistrate dismissing application to invalidate charge – Declaration sought that charge is invalid – Invalidity established – Criminal Procedure Act 2009 (Vic) sch 1, cl 1-3 – Victoria Police Act 2013 (Vic) s 227(1) – Baiada Poultry Pty Ltd v Victorian WorkCover Authority [2015] VSCA 344; John L Pty Ltd v Attorney-General (NSW) (1987) 163 CLR 508 considered – Southgate Management Ltd v Nitschke [2018] VSC 236 discussed.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr C. Carr	Tony Hargeaves & Partners
For the First Defendant	Ms S. Keating	Independent Broad-based Anti-corruption Commission
For the Second Defendant	No appearance

HER HONOUR:

Background

On 11 December 2015, an investigation known as Operation TIA was commenced by the Independent Broad–based Anti–corruption Commission (IBAC), under s 64(1)(c) of the IndependentBroad–based Anti–corruption Commission Act 2011 (Vic) (IBAC Act).

On 6 December 2017 as part of Operation TIA David Sordello, the Team Leader Investigations at IBAC, identified an email dated 20 March 2017 sent from Leading Senior Constable Jeff Bartolo to the Plaintiff, Detective Senior Sgt Wells of Professional Standards Command, Victoria Police. The email attached the employment details of David Sordello.

On 3 January 2018, another s 64(1)(c) investigation, Operation Manning, was commenced by IBAC in relation to alleged unlawful access of police information by Wells. On 19 March 2018, a charge was filed against Wells alleging that contrary to s 227(1) of the Victoria Police Act 2013 (Vic) (VPA):

The accused at Victoria on 20 March 2017, being a member of Victoria Police, without reasonable excuse, accessed police information contrary to his duty not to access the information.

In the Magistrates’ Court, Wells sought to have this charge struck out on the basis that it was invalid.

The Magistrates’ Court Decision

On 11 October 2018,[1] the Magistrates’ Court of Victoria heard argument on the validity of the charge. In substance, the argument on behalf of Wells was that whilst the charge contained all the legal elements of the offence it did not contain the essential factual ingredients.[2] The charge was argued to be invalid because it did not contain the reasonable particulars required to comply with cl 1(b) of sch 1 of the Criminal Procedure Act 2009 (Vic) (CPA).
[1]Special mention heard before Magistrate Reynolds held to determine the preliminary legal question as to the validity…

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 Wells v Stillman

Details

AGLC: Wells v Stillman [2020] VSC 51
Case: [2020] VSC 51
Decision Date: 19 February 2020

CaseChat Overview and Summary

In the matter of Wells v Stillman, the case was heard in the Supreme Court of Victoria. The applicant, Mr Wells, sought to invalidate a charge that had been laid against him by the respondent, Mr Stillman, who acted as a police officer. The charge alleged that Mr Wells accessed police information without a reasonable excuse, contrary to the provisions of the Victoria Police Act 2013. The dispute centred on the adequacy of the particulars provided in the charge, specifically whether they were sufficient to inform Mr Wells of the nature of the offence he was accused of committing. The applicant contended that the charge was defective and, therefore, invalid.

The court was tasked with determining whether the charge was legally valid and whether it provided adequate particulars to the accused. This required the court to consider the statutory provisions governing the laying of charges under the Criminal Procedure Act 2009 and the interpretation of the relevant sections of the Victoria Police Act 2013. Additionally, the court had to assess whether the decision of the Magistrate to dismiss the application to invalidate the charge was correct, and whether certiorari was an appropriate remedy to quash that decision.

The court found that the charge was indeed invalid due to the failure to provide adequate particulars, as required by law. It was determined that the charge did not sufficiently inform the applicant of the nature of the offence he was accused of committing. The court relied on the principles established in Baiada Poultry Pty Ltd v Victorian WorkCover Authority and John L Pty Ltd v Attorney-General (NSW), which emphasise the importance of clarity and specificity in the particulars of a charge. Furthermore, the decision in Southgate Management Ltd v Nitschke was also considered, which reinforced the need for charges to be clearly articulated to ensure the accused is fully aware of the allegations against them. Consequently, the court granted the relief sought by the applicant, quashing the decision of the Magistrate and declaring the charge invalid.

The final orders of the court were that the charge laid against Mr Wells was quashed, and a declaration was made that the charge was invalid due to the insufficiency of the particulars provided. The court's decision underscored the importance of ensuring that charges are properly articulated to uphold the rights of the accused and to maintain the integrity of the judicial process.

Orders