Young v Judge Nixon - [2008] VSCA 5

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No 7710 of 2004

PAUL CHARLES YOUNG
	Appellant
v
HIS HONOUR JUDGE NIXON OF THE COUNTY COURT OF VICTORIA and SENIOR CONSTABLE GAVIN TRIMBLE OF VICTORIA POLICE and THE COUNTY COURT OF VICTORIA	1^st Respondent
	2^nd Respondent 3^rd Respondent

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JUDGES:	ASHLEY and DODDS-STREETON JJA and HANSEN AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	1 February 2008
DATE OF JUDGMENT:	7 February 2008
MEDIUM NEUTRAL CITATION:	[2008] VSCA 5

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Judicial review – Offences against Road Safety Act 1986 (Vic) found proven – Whether error of law – Whether defences of necessity, duress, self-defence and honest and reasonable belief in particular state of fact wrongly rejected – Whether failure of trial judge to accord appellant a fair hearing – Whether actual or apprehended bias of trial judge and of judge hearing judicial review proceeding – No power in Court to make order against non-party.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	In person
For the 1^st Respondent	No appearance
For the 2^nd Respondent	Mr J D McArdle, Q C	Ms A Cannon, Solicitor for Public Prosecutions
For the 3^rd Respondent	No appearance

ASHLEY JA:

On 27 July 2004 a judge of the County Court sitting at Ballarat found that offences brought against the appellant, Paul Young, against ss 7(1)(a) and 18(1)(a) of the Road Safety Act 1986 (Vic) were proved to the criminal standard. His Honour, without recording convictions, imposed fines totalling $750.[1]
[1]His Honour also found a third charge proven and in respect of that matter fined the appellant $110, again without recording a conviction.

The charges arose out of an incident which occurred on 25 May 2002. According to a statement made by the second respondent to this appeal, Senior Constable Christopher Trimble, on 25 May 2002 he observed a vehicle being driven on the Pyrenees Highway, near Avoca. It caused him concern to the point that he followed it onto a bush track. Apparent attempts by the driver to avoid apprehension failed. The vehicle was found to be unregistered and the appellant, its driver, unlicensed. Penalty notices were immediately issued. There being an outstanding arrest warrant referable to the appellant – it pertained to a count of armed robbery - he was taken into custody.

It is not in doubt that the motor vehicle was unregistered and that the appellant was unlicensed.

In the ordinary course, it should have been expected that the appellant would be convicted of the two charges. But the appellant, who has since at least 1995 engaged in protracted disputation with various organs of the bureaucracy, the police, and the courts, sought to raise defences of duress and necessity; and as well a defence reliant upon Proudman v Dayman[2]. At times, again, he raised the issue of self-defence. Lying behind these defences was his contention that the Road Traffic Authority (‘RTA’) had wrongly deprived him of his driver’s licence in 1995, and had thereafter acted to prevent him renewing…

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 Young v Judge Nixon

Details

AGLC: Young v Judge Nixon [2008] VSCA 5
Case: [2008] VSCA 5
Decision Date: 7 February 2008

CaseChat Overview and Summary

In the matter of Young v Judge Nixon, the appellant, Young, sought judicial review of a decision made by Judge Nixon, who found Young guilty of offences under the Road Safety Act 1986 (Vic). The central dispute centred on whether Judge Nixon erred in law by rejecting the defences of necessity, duress, self-defence, and an honest and reasonable belief in a particular state of fact. Additionally, Young argued that Judge Nixon failed to provide a fair hearing and exhibited actual or apprehended bias. This case was heard in the Court of Appeal.

The court was tasked with determining whether Judge Nixon's rejection of the aforementioned defences constituted an error of law. Furthermore, the court needed to assess whether Judge Nixon's conduct denied Young a fair hearing and if there was any actual or apprehended bias. The court also had to consider the power to make an order against a non-party, a matter raised by Young.

In examining the legal issues, the court found that Judge Nixon did not err in law by rejecting the defences as there was no evidential basis for them. The court also held that Judge Nixon did not fail to provide a fair hearing and there was no evidence of actual or apprehended bias. The court further determined that it had no power to make an order against a non-party, a matter raised by Young.

Consequently, the court dismissed the appeal. The court found no merit in Young's arguments and held that Judge Nixon's decision was correct. The appeal was dismissed, and the decision of Judge Nixon was upheld.

Orders