Legal Research
Cases
Williams v Hand

Williams v Hand

Case [2014] VSC 527 24 October 2014

Judicial Review

Procedural Fairness

Statutory Interpretation

Administrative Law

No judgment structure available for this case.

Type to search within this case.

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

S CI 2014 1582

DALE DAVID WILLIAMS

Plaintiff

SENIOR CONSTABLE DYLAN HAND

THE MAGISTRATES' COURT OF VICTORIA

First Defendant

Second Defendant

---

JUDGE:	McDONALD J
WHERE HELD:	Melbourne
DATE OF HEARING:	2 October 2014
DATE OF JUDGMENT:	24 October 2014
CASE MAY BE CITED AS:	Williams v Hand and Anor
MEDIUM NEUTRAL CITATION:	[2014] VSC 527 First Amendment, 26 November 2014

---

ADMINISTRATIVE LAW — Judicial review — Order for summary hearing and determination of indictable offences — Subsequent order terminating summary hearing and remanding accused for committal hearing — Power to terminate summary hearing of indictable offences — Failure to comply with mandatory condition for determining whether summary hearing of indictable offences is appropriate — Criminal Procedure Act 2009, ss 28, 29, 30, 50, 51, 97, 168, 337 — Refusal to stand down proceeding — Denial of procedural fairness.

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr C Boyce	Grigor Lawyers
For the First Defendant For the Second Defendant	Mr R Elston QC No appearance	Office of Public Prosecutions

HIS HONOUR:

Introduction

On 2 August 2013, the plaintiff was charged with the following offences under ss 5(1), 7B(1) and 129A of the Firearms Act 1996 (‘Firearms Act’):

·being a prohibited person in possession of a firearm
·possession of a firearm on which the serial number has been defaced or altered in a manner otherwise than in accordance with the Firearms Act;
·being a person who possesses a firearm and who does not hold a licence under the Firearms Act authorising the possession of that firearm where that person did fail to store that firearm or any cartridge ammunition in his or her possession in a secure manner.

On 5 August 2013, the plaintiff made a bail application before the Magistrates’ Court at Frankston, constituted by Holzer M. The transcript of the bail application and the orders made by his Honour were tendered in evidence.[1] During the course of the bail application, Holzer M was apprised of the nature of the offences alleged against the plaintiff and the plaintiff’s criminal history. On 5 August 2013, a request for a summary hearing of the charges under the Firearms Act was signed by the counsel for the plaintiff and also signed on behalf of the police prosecutor.[2] At the conclusion of the hearing before Holzer M on 5 August 2013 he remanded the plaintiff to appear at Frankston Magistrates’ Court on 5 February 2014 for a contested summary hearing.
[1]Exhibit AG4 to the supplementary affidavit of Alistair Grigor affirmed 5 May 2014.
[2]Exhibit AG5 to the supplementary affidavit of Alistair Grigor, affirmed 5 May 2014.

On 13 January 2014, the plaintiff was charged with a further three offences in lieu of those set out above. These offences were in essentially the same terms as the offences referred to above, save for the fact that the new charges alleged that the relevant offending had occurred between…

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 Williams v Hand

Details

AGLC: Williams v Hand [2014] VSC 527
Case: [2014] VSC 527
Decision Date: 24 October 2014

CaseChat Overview and Summary

In the case of Williams v Hand, the applicant sought judicial review of a Magistrate's decision to terminate a summary hearing and order a committal hearing instead. The applicant was charged with several indictable offences. The court had to decide whether the Magistrate's decision was lawful and whether it was appropriate to terminate the summary hearing without considering a plea of guilty.

The central legal issue was whether the Magistrate had the power to terminate a summary hearing of indictable offences and whether there was a failure to comply with the mandatory condition for determining the appropriateness of a summary hearing. The applicant argued that the Magistrate had no power to terminate the summary hearing without considering a plea of guilty and that this amounted to a denial of procedural fairness. The respondent contended that the Magistrate had the power to terminate the hearing and that the decision was made in accordance with the mandatory condition under the Criminal Procedure Act 2009.

The court found that the Magistrate did have the power to terminate the summary hearing and order a committal hearing if the mandatory condition for determining the appropriateness of a summary hearing was not met. However, the court also found that the Magistrate failed to consider a plea of guilty before terminating the summary hearing, which amounted to a denial of procedural fairness. The court held that the decision to terminate the summary hearing was unlawful and that the applicant was entitled to a remedy in the form of a declaration and an order for costs.

The court declared that the decision to terminate the summary hearing and order a committal hearing was unlawful and remitted the matter to the Magistrate to consider the plea of guilty before making a decision on the appropriate course of action. The court also ordered the respondent to pay the applicant's costs of the proceeding.

Orders