CASE SUMMARIES 20181 Family Violence Intervention Orders – made according to law

In MN v OP and Magistrates’ Court of Victoria MC 01/2018, an appeal was lodged in relation to an ex parte interim Family Violence Intervention Order.HELD: Proceeding dismissed. 1. The Magistrate did not make a jurisdictional error or a material error of law by failing to have regard to the previous intervention order made against OP or his previous application for an intervention order. It was open to the Magistrate in determining the degree of risk of family violence to the children to have regard to the Family Court order made after trial as it was the operative order when OP applied ex parte for an interim intervention order.

2. The Magistrate formed the view that the children might be at risk and therefore made the interim intervention order. The Magistrate did not act unreasonably in reaching that conclusion or in making the interim order.

3. The Magistrates’ Court has power to dismiss or stay any proceeding as an abuse of process. Courts, including those created by statute, possess inherent power to restrain proceedings which are an abuse of process.

4. The Magistrates’ Court has powers to dismiss both civil and criminal proceedings, which are an abuse of process. With respect, the Magistrate was incorrect in deciding that the Court lacked that power.

5. In any event, the grounds advanced did not establish a basis for an abuse of process application. True it was that OP had not applied to the Family Court to vary its orders and OP had made admitted errors in dates and the extent of the restrictions placed on MN’s attendance at the children’s school. But these matters did not necessarily establish matters that the application was an abuse of process.

6. The Magistrate did not incorrectly describe the test contained in s109(2)(b) of Family Violence Protection Act 2008 ('the Act'). The Magistrate correctly referred to its requirements describing it as there had been a change in circumstances since the family violence intervention order was made. He considered that the first requirement was satisfied. But he did not consider that the second requirement was satisfied. That was that the court was satisfied that the change may justify a variation or revocation of the order. The Magistrate stated the tests correctly.

7. The Magistrate was not obliged to hear the abuse of process application. He was entitled to defer consideration of that issue until the final hearing. It was a matter for his discretion in case management.

8. The Magistrate did not err in allowing OP to withdraw the application and MN was not denied procedural fairness by the Magistrate so acting.

9. Under s154 of the Act, the general rule subject to exceptions is that each party bears their own costs of the proceeding. Secondly, the court may make an order about costs if the court decides that exceptional circumstances warrant otherwise. Thirdly, if the court is satisfied that the making of any application under the Act was vexatious, frivolous or in bad faith, the court may award costs against the applicant. Fourthly, the mere fact that an application is made and then withdrawn is not exceptional and does not amount in itself to a vexatious or frivolous application or an application made in bad faith.

10. MN failed to prove that the application was an abuse of process and lacked good faith. It was for MN to attempt to persuade a Magistrate that an order for costs should have been made. The Magistrate did not have to hear extensive evidence on that issue, but was entitled to place weight on the primary principle of the Act that each party should bear their own costs.

2 Criminal law – passenger in stolen motor carIn Watson v DPP MC 02/2018, a passenger was in a stolen motor car. The question was whether the Magistrate was correct to find the charge proven. Upon appeal-HELD: Appeal dismissed. 1. The facts of the case were established by evidence from witnesses without dispute. The fact was W. was in a stolen car ― although not stolen by him or with his involvement. But as a result of being a passenger in the car and by operation of the statutory provisions, the first and second elements of the crime of theft were made out against him. The only issue was proof of dishonesty. That is, the prosecution had the onus of proving beyond reasonable doubt

that W. knew, whilst being a passenger in the car, that the car was stolen property. The case of guilty knowledge was based wholly on indirect or circumstantial evidence in which proof of guilt was based on the drawing of inferences, using proof of one fact as evidence of another.

2. Considering all the evidence, its ‘united force’ justified the inference that W. was engaged in the exercise of getting rid of the car, and that was consistent with him knowing or coming to know shortly after the collision that he was in a stolen car. There was a spontaneous and then a very dangerous and hyperactive degree of desperation by the driver to scamper from an unremarkable road collision and abandon the car, an act which by its nature was done to avoid any identification of the car with its occupants.

3. The circumstances showed that W. was engaged in a concerted act of abandonment of the car and an involvement to dissociate himself from the car, which was not consistent with ownership of it, but a knowledge or recognition that it was stolen. The abandonment of the car so close to the collision, and W.'s participation in it, went to the aggregate of showing W. knew or came to realise he was in a stolen car.

4. The inference drawn by the Magistrate was reasonable and open on the evidence and accordingly there was no error of law.

5. The Magistrate looked to the accumulated evidence of events immediately after the collision to conclude that W. was engaged and active in the attempt to abandon the car at the building site (an act inconsistent with lawful possession) and must have either known or realised at the latest by a short time after the collision that the car was stolen.

6. The attempt to abandon the car at the building site, an act in which W. was engaged, was not an act consistent with legitimate ownership, and the proximity of the building site to the place of collision only went to show just how quickly they wanted to be rid of it.

7. The Magistrate concluded that the concatenation of circumstances led inexorably to the conclusion that W. must have known, at the latest by a short time after the collision, that the car was stolen. There was no error in that reasoning. It involved the proper process of drawing an inference from the totality of the unifying behaviour of the three occupants in the time shortly after the collision, in the obvious pursuit of a common objective that involved distancing themselves from the car in a way that was explicable only by all three sharing the common knowledge that the car was stolen.

8. W. failed to establish an error of law. The Magistrate’s findings were based on undisputed facts. They were not conjectural. The ultimate finding of W.'s guilt beyond reasonable doubt was a rational inference and was the only inference reasonably open in all of the circumstances. Those circumstances excluded an inference consistent with innocence.

9. Accordingly, W.'s appeal was dismissed.3 Bankruptcy – whether bankrupt can sue in his own name for income derived during

the bankruptcyIn Davey v Dessco Pty Ltd & Anor MC 03/2018, a solicitor was bankrupt for a certain period and commenced legal proceedings in the Magistrates’ Court for legal services provided. The Magistrate was satisfied that the solicitor had no standing to institute the proceedings. Upon appeal-HELD: Appeal allowed. The Magistrate’s orders set aside.1. It is well-established that income earned by a bankrupt, during his or her bankruptcy, does not come within the definition of after-acquired property and accordingly does not automatically vest in the bankrupt’s trustee.

2. It is important to remember that the right to retain income is subject to the contribution regime outlined in Div 4B of Pt VI of the Bankruptcy Act 1966 ('Act'). That regime effectively allows bankrupts to generate sufficient income in order to feed, house and clothe himself or herself and any dependants.

3. The bankrupt’s trustee has no right to sue for income or wages of the bankrupt, as the right to this income has not vested in the trustee. The necessary corollary must be that the right to sue for income is retained by the bankrupt.

4. The statement of principle that there is no provision in the Act preventing a plaintiff from commencing a proceeding after bankruptcy seeking relief in relation to property that does not vest in the trustee of the estate of the bankrupt, when combined with what was said

in Re Gillies; Ex parte Official Receiver in Bankruptcy [1993] FCA 289; (1993) 42 FCR 571, 577 (that after-acquired income of the bankrupt does not vest in bankrupt’s trustee), is compelling authority for the proposition that a bankrupt can commence an action in relation to the recovery of income earned by the bankrupt during his or her bankruptcy.

5. The net effect of these provisions is that any judgment in favour of Mr Davey which recovers income earned by Mr Davey whilst he was bankrupt may be recovered by his trustee by a subsequent assessment under s139W(2). So it may transpire that Mr Davey, if successful in his claims, may be liable to make a contribution under s139Q to the extent that his income for the relevant period exceeds the relevant base income threshold.

6. The end result was that Mr Davey was entitled to sue for the fees he allegedly earned during his bankruptcy.

4 Social Security Fraud – whether discharge under s19B of Crimes Act 1914 (Cth) appropriate.In Feenstra v Pomare MC 04/2018, the defendant F. pleaded guilty to one count of obtaining a financial advantage. The Magistrate ordered that the defendant be discharged without a conviction pursuant to s19B of the Crimes Act 1914 (Cth). Upon appeal-HELD: Appeal allowed. The order made by the Magistrate set aside. 1. The relevant principles to be applied in determining whether to make an order under s19B include:1. Orders under s19B of the Crimes Act are exceptional in nature.2. Section 19B involves a two-stage test.3. First, the court must consider whether there is information that falls under any of the criteria listed in s19B(1)(b)(i), (ii) or (iii).4. If there is such information, the second stage arises. The court must then consider whether, having regard to that information, it is inexpedient to inflict any punishment or to inflict only nominal punishment or it is expedient to release the offender on probation without recording a conviction. This second stage necessarily involves a consideration of the seriousness of the offence, the prevalence of the offence and general deterrence.

2. The offence was very serious, occurring over a period of about two years and six months. P. intentionally misrepresented her true financial circumstances every fortnight over that period, making over 60 false declarations. She received nearly $30,000 by her deception. Social security fraud offences are prevalent. General deterrence is a very important factor.

3. There was nothing in P.'s character or antecedents to justify the exceptional use of s19B. The facts in this case, including P.'s character, antecedents and mitigating factors, did not justify such an exceptional disposition. The disposition failed to reflect the seriousness of the offence and the need for general deterrence.

5 Application for an adjournment – application refused – indemnity costs orderIn Surf Coast Smash Repairs & Anor v Dandy Flooring MC 05/2018, an application was made by the plaintiff that a matter listed for hearing be adjourned. The Magistrate refused the application dismissed the proceeding and made an order for indemnity costs. Upon appeal-HELD: Appeal dismissed.1. There were a number of bases upon which the Magistrate was entitled to make an order for costs which departed from the usual position with respect to costs. The conduct of the plaintiffs towards the other party and the Court could be described as cavalier at best. That conduct alone would have been sufficient to justify an order for indemnity costs, and it was certainly open to the Magistrate to make the order that he did on the basis that the plaintiffs were inexplicably not ready to proceed.

2. It was open for the Magistrate to find that the plaintiffs had, among other things: (a) engaged in misconduct that caused a loss of time to the court and to other parties; (b) commenced or pursued allegations which were without any chance of success; and (c) failed to properly discover documents.

3. Ground (a) of the amended notice of appeal was not made out. The Magistrate was clearly cognisant of the principles enumerated in Colgate-Palmolive [1993] FCA 536; (1993) 46 FCR 225; (1993) 46 FLR 225; (1993) 118 ALR 248; (1993) 28 IPR 561 and the provisions of the Civil Procedure Act 2010 ('CPA'), and their relevance to the question of costs. The considerations he took into account were all relevant considerations and no error in the exercise of his discretion had been established.

4. There was a more than adequate understanding of the basis of the Magistrate's decision with respect to costs. The Magistrate:

(a) referred expressly to the principles in Colgate-Palmolive, and the obligations of the parties and the courts under the CPA; (b) referred to the merits of the plaintiffs’ case and the conduct of the plaintiffs and stated as follows:The sorts of things a court looks at is where a case is brought that has no prospects of success, where its brought for some ulterior motive, where it’s been conducted to the disadvantage of the other party, that conduct has been vexatious, all of those things, every one of those matters applies in this situation;and (c) made it clear that he wished to provide the defendant with a complete indemnity for its costs.

5. The plaintiffs advanced no submissions on the question of costs. There was nothing for the Magistrate to consider or reject apart from the submissions advanced by the defendant.

6. Accordingly, the appeal was dismissed.6 Dispute between building owners and architect - Claim that VCAT had jurisdiction

In Radojevic v JDA Design Group Pty Ltd MC 06/2018 there was a claim for damages by building owners and the owners sought a stay of proceedings so that VCAT could be involved. The Magistrate dismissed the application. Upon appeal-HELD: Appeal granted. The owners were entitled to obtain a stay. 1. As a general principle, all words in a statutory provision must be given meaning and effect: no clause, sentence, or word shall prove superfluous, void, or insignificant, if by any other construction they may all be made useful and pertinent. In accordance with the Interpretation of Legislation Act 1984, footnotes and endnotes are not considered part of an Act. They may, however, by reason of s36(4) of that Act be used in the interpretation of a provision of an Act.

2. Section 57(1) of the DBC Act applies if a person starts any action arising wholly or predominantly from a ‘domestic building dispute’. That term is defined in s54(1) to include a dispute or claim in relation to any design work carried out by the architect or building practitioner in respect of domestic building work. Domestic building work means any work referred to in s5 that is not excluded from the operation of the DBC Act by s6. Section 54 intends to give VCAT jurisdiction to resolve such disputes.

3. The approach adopted by the Magistrate resulted in s54(1)(c) having no application, because the work the subject of the dispute was not covered by the DBC Act as s6(1)(e) provides. While the Magistrate referred to the general principle that the Court should give effect to all of the language of the Act, he adopted the approach of determining the leading and subordinate provisions, as there was no apparent purpose for the conflicting sections other than a purpose shared by both.

4. The use of ‘must’ in s57(2) suggests that the Court has no discretion once s57(1) and (2)(a) and (b) are satisfied. It is rare that the word ‘must’ does not impose an unqualified obligation. That is, the term is used in the imperative sense. In Victorian statutes the word ‘must’ is often used in place of the word ‘shall’ to convey a positive obligation. Section 45 of the Interpretation of Legislation Act 1984 deals with the meaning of the words ‘may’ and ‘shall’. Prima facie, the use of ‘must’ in s57(2) suggests that the Court has no discretion once s57(1) and (2)(a) and (b) are satisfied.

5. The specificity and detail of the Act following recent reforms, the language and purpose of the provision, and the use of ‘may’ in surrounding provisions, suggests that the word ‘must’ in s57 must be read as imperative. The purpose of s57, that VCAT be chiefly responsible for resolving domestic building disputes and the purpose and objects of the DBC Act will be promoted by an imperative construction to the word ‘must’ in s57.

6. The Magistrate erred in jurisdiction and by error of law on the face of the record in his interpretation of s57.

7 Children’s Court – appeal in relation to condition to vaccinate childrenIn ZD v Secretary to Dept of Health and Human Services MC 07/2018 a Magistrate authorised the vaccination of young children as an incident of the making of an interim accommodation order. Upon appeal-HELD: Appeal dismissed.1. The appeal raised underlying issues of principle which affected the ongoing interests of many members of the public. Those principles concern the capacity of a magistrate to make certain types of decision in the best interests of the child. They are not limited in their

application to decisions concerning immunisation.

2. The variation sought to insert a condition in the IAOs which would allow for the children to be vaccinated. The mother objected to this variation. The Court directed that the parties file written submissions and then gave them the opportunity to be heard with respect to these submissions. The Magistrate concluded that it was in the best interests of the children that the condition be inserted.

3. The condition in the present case did not go beyond the purpose of seeking to ensure the best interests of the children during the operation of the IAOs by reference to a consideration which bore directly on the capacity to accommodate the children safely and appropriately.

4. Neither the plain words of s263(7), nor its context, nor the purpose and objectives of the CYFA supported the appellant’s case that a reading of the Act as a harmonious whole required the implication with respect to parental responsibility for which the appellant contended.

5. Furthermore, if there was a tension between the provisions of the Act (which may be doubted), then the terms of s263(7) must be respected and that tension fell to be resolved by reference to the concept of best interests as articulated in s10.

6. Section 263(7) of the CYFA is not capable of more than one interpretation. It followed that s32(1) of the Charter, and that the Charter rights identified as potentially relevant, did not assist in the construction to s263(7) of the CYFA and could not be used as a basis for preferring some alternative construction than that already identified.

7. The construction of s263(7) of the CYFA identified above was not incompatible with the Charter rights raised by the parties and, if anything, the Charter, and s17 in particular, further supported that construction.

8. Accordingly, the appeal was dismissed. The Magistrate did not err in concluding that he had power to make the orders which he imposed.

8 Drink/driving – reading of 0.067g – prior convictions – whether imprisonment sentence appropriateIn Nichols v McCullough MC 08/2018, the accused was sentenced to two months imprisonment for a drink/driving charge. This was the driver’s fourth drink/driving offence. Upon appeal-HELD: Order that the sentence be suspended for a period of two years.1. The question for the Appeal Court was whether the sentence which was imposed was unreasonable or plainly unjust. The Magistrate placed considerable emphasis on N.'s prior convictions. Whilst he was required to do that, less attention was given to N.'s progress or signs of rehabilitation since he was last before the court in 2010. His response to the penalties which were imposed in respect of those previous offences against the Act was largely ignored.

2. There was no consideration by the Magistrate of whether the sentence of imprisonment which was about to be imposed should have been suspended. The possibility of a sentence other than imprisonment or the suspension of such a sentence, had been acknowledged by the Magistrate on a previous occasion, at which time the matter was adjourned for a pre-sentence report. The circumstances which called for consideration of suspension included the low reading, the lack of aggravating features, and the apparent stability in N.'s personal circumstances. Considered with the evidence of his financial obligations, there was a context within which the court ought to have turned its mind to the question of whether the sentencing objectives it had described could be met without requiring N. to serve the term of imprisonment immediately.

3. Once the Magistrate concluded that a term of imprisonment was appropriate, he was required to turn his mind to whether that custodial period should have been suspended. Whilst there was no error manifest in the Magistrate's statement that the sentence he was imposing must deter N. and others from offending in the future, a statement recognising the grave social evil which offending in this category certainly is, and the question of whether all or part of that term of imprisonment should be suspended, was not considered. That was an error. It overlooked the question of whether a suspended sentence was an appropriate disposition of the matter. Before an immediate custodial sentence could be imposed, the Magistrate was required to be satisfied that he could not upon a proper application of principle suspend the sentence.

4. Having regard to the matters the Appeal Court set out as relevant to the determination of the sentencing response, the Court found that on a proper application of sentencing principles it was not open to the Magistrate not to suspend the custodial portion of the sentence. That error caused the imposition of a penalty which the Court held to be manifestly excessive.

5. Accordingly, the Court on appeal was satisfied that the first ground of the notice to review should succeed and determined that the whole of the sentence should be suspended on condition that N. was of good behaviour, and that he commit no offence against the Road Safety (Alcohol and Drugs) Act 1970 for a period of two years. Further, N. was suspended from holding or obtaining a drivers licence for a period of 15 months.

9 Assault occasioning bodily harm and common assaultIn Sinden v DPP (NSW) MC 09/2018 a Magistrate dismissed the principal charge of assault occasioning actual bodily harm but convicted the defendant on the back-up charge of common assault. Upon appeal-HELD: Appeal allowed. The conviction in respect of the offence of common assault was set aside. 1. The evidence in support of the two counts was largely identical. Importantly, once self-defence was raised by S., it became a matter that the Crown was required to negative beyond reasonable doubt. If the Crown failed to negative self-defence in respect of one of those charges, it necessarily followed that the Crown had failed to negative it in respect of the other, in which case both charges should have been dismissed.

2. Accordingly, the Magistrate erred in convicting S. of the back-up charge. 10 Withdrawal of charges – procedural fairness – failure to hear from accused

In Brazel v Melbourne Magistrates’ Court and Trimboli MC 10/2018 B. pleaded not guilty to four charges. The prosecutor applied to withdraw the charges which the Magistrate granted without inviting B. to make submissions opposing the application. Upon appeal-HELD: Appeal granted and the matter remitted to the Magistrates' Court to be heard and determined by a different Magistrate. 1. The current state of the law appears to be that after commencement of a trial, a court has power in exceptional circumstances to refuse to accept the withdrawal of the prosecution, if it is necessary for the purpose of preventing an abuse of its processes.

2. The obligation on a court to afford natural justice and act fairly is undoubted. It is a feature of our system of justice that this obligation extends to all persons before a court, including those who have been convicted of the most serious crimes. The content of the doctrine of natural justice or the duty to act fairly includes providing parties, whose interests are being affected, with the opportunity to be heard.

3. The Magistrate in this case did not afford B. natural justice. Neither counsel for B., nor B. himself, were given any opportunity to make a submission in opposition to the application before the Magistrate declared that ‘all charges are marked withdrawn’ and asked whether there were ‘any other applications’ in circumstances where the Magistrate must have been aware that the application was opposed. The Magistrate’s refusal to give B. an opportunity to be heard was not assisted by the subsequent refusal of B.s implicit request to have the opportunity to speak to his counsel on the basis that, as the Magistrate said, ‘[t]here is nothing before the Court’.

4. The Magistrate could only determine whether B.s resistance to the application was hopeless after the Magistrate had heard sufficiently from the parties to enable the Magistrate to determine the extent of jurisdiction and whether the facts supported its exercise. Instead, the Magistrate refused to hear submissions at all in support of the objection, and was not in any position to determine that the Magistrate had no jurisdiction.

11 Driver licence suspended – appeal to Court – permissible orders that can be madeIn The Roads Corporation v Numa and Anor MC 11/2018, N’s driver licence was suspended after 12 demerit points had been incurred. N. disputed the suspension and successfully applied to a Magistrate. Upon appeal-HELD: Magistrate's decision quashed and remitted to the Court for hearing and determination in accordance with law. 1. The first ground of appeal was solely concerned with compliance by VicRoads with the Regulations in maintaining its records. The first ground was only satisfied if the record of demerit points maintained by VicRoads was not as required by the Regulations.

2. The second ground was restricted to addition errors when totalling the number of demerit points incurred by a person in a relevant period. Only addition errors in the

summation of demerit points can be corrected under this ground.

3. The limited nature of the two available grounds of appeal was confirmed by the relief available under s46H(5). There are only two types of relief that can be granted if an appeal is successful. Firstly, the Court may order VicRoads to record the demerit points as required by the Regulations. Secondly, the Court may direct VicRoads to correct the error made in the addition of the number of demerits points incurred in a relevant period. The two types of relief correspond to the two grounds of appeal.

4. In the present case, the Magistrate did not make either of the two permissible orders. Apart from costs, the order was in substance, that the second notice be set aside and have no effect. The magistrate had no power to make such an order.

12 Motor car insurance – non-disclosure by beneficiary of relevant matterIn Alliance Australia Ltd v Taylor and Anor 12/2018, a beneficiary failed to disclose to an insurance company a certain matter which would have resulted in the insurance company cancelling the insurance. A Magistrate held that the insurer was bound to indemnify. Upon appeal-HELD: Appeal allowed. The Magistrate's orders set aside and replaced with different orders.1. The question on this appeal was whether knowledge of a disclosable matter by a person taking the responsibility for renewing a contract of insurance can be imputed to the insured under the law of agency, so that if the matter is not disclosed, it will be a non-disclosure by the insured which entitles the insurer to avoid the contract or reduce its liability.

2. On appeal by the insurer, the Magistrate’s orders were set aside. There had been error in the legal analysis by which it was held that the person who took responsibility for renewing an insurance policy was not an agent of the insured. Had the matter been disclosed, there was unchallenged evidence that the insurer would not have insured.

3. In the result, the insurer was entitled to refuse indemnity to a claim under a motor car insurance policy.

4. Apart from the suggestion that the collision was staged, there was no suggestion that T. was dishonest in not disclosing the suspension of her mother’s licence. But she knew it and did not disclose it, knowing that it had to be disclosed. Allianz may be a loss bearing entity, but it would not have renewed the policy had there been a disclosure, and it has the protection of the Act. The misfortune here was attributable to the result of the peculiar facts concerning the arrangement, and the domestic handling of the matter.

13 Bail refusal by MagistrateIn Application for Bail by Ronald Wishart MC 13/2018 a Magistrate refused an application for bail.Upon appeal-HELD: Application for bail refused.1. W. was in a show cause position pursuant to (a) section 4(4)(ba)(i) of the Bail Act 1977 (‘the Act’), being charged with contravention of a Family Violence Intervention Order in circumstances where within the last ten years, he had been found guilty of an offence in the course of which he used or threatened to use a firearm, explosive or offensive weapon; and (b) section 4(4)(c) of the Act, being that the alleged offending involved the threatened use of a firearm.

2. The only question to be answered was whether W. had shown cause pursuant to s4(4) of the Act, but that importantly, ‘unacceptable risk’ issues were not to be excluded from that consideration, and remained central to whether W.'s pre-trial detention was justified.

3. W. failed to show cause, as required by the Act. As part of that assessment regard was had to the risk factors relevant to the question of unacceptable risk. There was an unacceptable risk that W., if released on bail, would commit an offence, or offences, whilst on bail, or interfere with witnesses, namely the wife, or her parents.

4. As to the imposition or conditions on a proposed grant of bail to reduce risk to a point where it would reach an acceptable level, in the circumstances of the background of W., and in the circumstances of the particular offending alleged, sufficient conditions could not be imposed to address that risk. W. had a history of volatility, associated with a demonstrated capacity and willingness to issue threats of serious violence. At least one of those alleged threats had been made towards a close relative of the wife in circumstances where it appeared clear enough that W. knew where that person resided. The wife alleged fear that W. could establish where she was currently residing.

5. Accordingly, the application for bail was refused.14 Bail refusal by Magistrate

In Application for Bail by Dale David Williams MC 14/2018 a Magistrate refused an application for bail. Upon appeal-HELD: Application for bail refused.1. If proven, the allegations of violence committed by W. towards the complainant represented serious misconduct against a domestic partner. The events were alleged to have occurred not only in a domestic setting in houses, but also in a public setting, on one occasion where it was suggested that W. chased the complainant in a car whilst driving in a reckless manner and assaulted her by kicking her on the ground having dragged her from a car. This type of conduct was alleged to have occurred on three separate dates. The conduct on the last occasion was alleged to have occurred when an interim Family Violence Intervention Order was in effect.

2. Overall, the alleged offending should be regarded as serious, particularly in light of the past criminal history of W., and the fact that the second and third pieces of alleged offending occurred in breach of a CCO, and an interim Family Violence Intervention Order.

3. The prosecution case was not inherently weak, and the expected delay was not of such compass that it became a strongly determinative factor.

4. W.'s criminal history demonstrated a clear willingness on his part to not only engage in criminal conduct at a serious level, but also a clear trend of defiance of court orders. His history since 2000 revealed convictions for multiple offences involving personal violence which had in a number of instances resulted in sentences of imprisonment. His last serious conviction involved an armed robbery involving threats, with a subsequent CCO to begin on the expiration of the sentence.

5. W. failed to show cause, as required by the Act. There was an unacceptable risk that W., if released on bail, would commit an offence, or offences, whilst on bail, or interfere with witnesses.

6. Accordingly, W. had not shown cause why he should be granted bail.15 Civil proceedings – Work done in relation to Welding Services

In A-One Metal Services Pty Ltd v AARA Pty Ltd MC 15/2018, the question was whether judicial notice could be taken on the standards of welding workmanship. The Magistrate took judicial notice of the standards of welding workmanship.HELD: Appeal dismissed. Decision of the Magistrate affirmed.1. Observations of the aesthetic standards of balustrades are a matter of common knowledge and experience. Commercial balustrades are common and ordinary people are likely to interact with them in a variety of settings in their daily lives. Whether a finished welding on a balustrade has an attractive physical appearance or whether it is up to the ordinary standards of finish is an issue that is capable of determination by the day-to-day experiences and observations of everyday people. It is fair to say that an ordinary person without any particular expertise in the field would be capable of observing whether a balustrade possesses a rough, bubbly or generally unappealing physical appearance.

2. The Magistrate was correct in his finding that the aesthetic, welding standards of balustrades concern an area of common knowledge that is not reasonably open to question either within NSW or generally.

3. Accordingly, the statutory requirements for judicial notice of s144(1)(a) of the Evidence Act (NSW) were satisfied and this ground of appeal against the Magistrate's decision was not made out.

4. In relation to the finding that the work undertaken was defective and that damages were suffered, it was open to the Magistrate to find that the welding work was defective and that evidence of invoices could be relied upon as evidence of damages.

16 Two dogs chased the neighbour’s dog – procedural fairnessIn McGlew & Rohan v City of Rockingham MC 16/2018, a Magistrate made orders for destruction of two dogs relying upon the comments made by a ranger.HELD: Leave to appeal granted. Orders for destruction of the dogs set aside and applications remitted to the Magistrates' Court to be determined according to law by a different Magistrate. 1. The rules of procedural fairness require that prior to making an order for destruction,

a Magistrate is to provide to a person convicted of an offence (to which s39(1) applies) a reasonable opportunity to make submissions and/or adduce relevant and admissible evidence which goes to any issues of relevant fact that in exercising the discretion conferred on the court a Magistrate may rely upon. Put another way, the convicted person must be given a fair opportunity of answering the case put against him or her.

2. A litigant is entitled to a fair opportunity to correct or contradict any relevant material which is prejudicial. This principle extends to a right by a convicted person when being sentenced, to test the evidence relied upon by the prosecution in respect of any consequential orders which are sought to be imposed against them.

3. It was clear from the Magistrate's reasons for decision that, when she made a finding it was necessary to make an order for destruction of the dogs she did so on grounds it was necessary for the safety and well-being of the community generally and other animals. Plainly, in making this finding, her Honour made an assessment of risk of harm that could be caused by the dogs and in doing so relied upon not only the expert report of Mr Crozier but also on the matters set out in the statement made by the ranger, Ms Holmes.

4. In the event that the Magistrate was of the opinion that Ms Holmes' statement was admissible, in whole, or in part, the appellants should have been given an opportunity to test the expertise of Ms Holmes and to test the reliability of the opinions stated by her. This may have resulted in a submission to the Magistrate that Ms Holmes should have been made available for cross-examination.

5. The appellants were denied the possibility of a different result.17 Sentencing – whether Magistrate erred in law in relation to the defendant’s mental

impairmentIn Birch v Binnekamp MC 17/2018 a Magistrate imposed a sentence of imprisonment. On appeal, the defendant alleged that the Magistrate erred in law by failing to correctly take into account the defendant’s mental impairment.HELD: Appeal dismissed.1. General deterrence is more usually described as the need to ensure that the penalty is sufficient to deter other people from committing similar crimes.

2. Depending on the circumstances, mental illness may affect the weight to be given to various sentencing factors, beyond just general deterrence. However, if the Magistrate was referring to community confidence, denunciation or punishment in the second sentence of the extracted reasons, he did not make the error alleged.

3. It was for B. to establish the error alleged. The extracted reasons show that the Magistrate intended to moderate the factor of general deterrence and did not fail to do so.

4. The four appeal offences must also be viewed against the pattern of offending revealed by the other 12 offences for which B. was sentenced at the same time. While the penalty for each offence must be for that offence alone, the other offences were relevant to the assessment of the need for specific deterrence and the need to protect the community. The other offences indicate that the four offences the subject of the appeal were not isolated aberrations.

5. B. is mentally ill. He has been diagnosed with 'schizoaffective disorder with coexistent mild intellectual disability and harmful use of drugs'. In addition to his schizoaffective disorder, he is said to have 'mental and behavioural disorders due to psychoactive substance use – cannabis and methylamphetamine harmful use, exacerbation of psychosis'.

6. On the evidence before the Magistrate, the mitigating value of B.'s mental illness was limited. The Psychiatric Report said that B. showed little insight into his mental illness. This was accepted by his counsel in the sentencing proceedings. He has a long-standing drug problem. His criminal history and personal history did not permit a conclusion that there was a low risk of reoffending. Given the nature of the offences, the need for the protection of the community was a significant sentencing factor.

7. It was reasonably open to the Magistrate to take a view of the circumstances that would lead to a conclusion that imprisonment was the only appropriate disposition for these four offences. It was reasonably open to the Magistrate to be positively satisfied that a lesser option than suspended imprisonment was not appropriate. It was not unreasonable or unjust to impose imprisonment.

18 Coronial determination – Application to open inquest held in 1995In Coulston v State Coroner of Victoria MC 18/2018, the application to the State Coroner to re-open an inquest into the deaths of three persons in 1992 was dismissed. Upon appeal-HELD: Application for leave to appeal out of time refused.1. None of the steps taken by C., whether considered individually or collectively, were outside reasonable anticipation or expectation, or could constitute ‘exceptional circumstances’. The appeal time elapsed without any effective step to appeal having been taken by C. Nothing in any way ‘exceptional’ took place. A notice of appeal was not regularly lodged until long after the refusal. Nothing that occurred after the expiry of the appeal period altered the position.

2. Having considered the submissions of C., and the evidence that he provided, the Court was not satisfied that the grant of leave to bring an appeal was desirable in the interests of justice. C.'s case before the Court was essentially the same case as was made to the State Coroner, and relied on the same submissions and documents. The State Coroner fully considered the issues, and provided compelling reasons for rejecting C.’s application.

3. Neither of the two substantive grounds sought to be relied on by C. in his notice of appeal had any merit. The Judge was satisfied that (1) The State Coroner afforded C. procedural fairness and natural justice. She fully considered and assessed the facts and evidence on which he relied in the context of the other evidence available concerning the deaths of the deceased; (2) The new facts and evidence did not make the original finding unsustainable; and (3) The whole of the facts and evidence pointed to the appropriateness of the original finding that C. ‘contributed to the cause of death’ of each of the deceased.

4. The original finding that C. contributed to the cause of death of each of the deceased was unexceptional and consequential on his convictions for murder. The new facts and circumstances were not cogent or significant, and did not demonstrate that any useful purpose would be served by re-opening the inquest into the deaths of the deceased.

19 Small Claims Division – application for transfer to a Court of Federal jurisdictionIn Ryan v The Council of the City of Sydney MC 19/2018 a claim in the Small Claims division of the NSW Local Court was sought by the defendant to be transferred to the Court of Federal Jurisdiction. The Magistrate refused the claim.HELD: Summons dismissed.1. It cannot be doubted that the Small Claims Division had jurisdiction to hear and determine the Council’s proceedings claiming a monetary judgment for unpaid rates. Whether the Council succeeded or not was a matter which fell within, and not outside of, the jurisdiction of the Small Claims Division of the NSW Local Court.

2. While the Court has a duty to treat litigants in person fairly and to hear their arguments fully, the Court may not indulge the litigant with special treatment in a way that disfavours their opponent.

3. It may have been prudent or courteous for the Council to address R.'s questions, but it was under no legal obligation so to do. Such a failure did not constitute a defence to the Council’s claim for unpaid rates.

4. The third argument of R. was that his matter involved federal jurisdiction and, accordingly, could only be heard and determined by a Chapter III court. He submitted that the Local Court did not fall within that description, nor did it have the ability to exercise federal jurisdiction. This submission was clearly mistaken in a number of respects. First, the proceedings did not involve the exercise of any federal jurisdiction at all. Federal jurisdiction is the authority to exercise the judicial power of the Commonwealth. The proceeding here involved a claim by the Council under a New South Wales law against a New South Wales resident. The judicial power of the Commonwealth was simply not engaged.

5. Even if the matter did involve federal jurisdiction, and it did not, the Local Court had jurisdiction to hear and dispose of it. Section 71 of the Commonwealth Constitution permits state courts to be invested with federal jurisdiction by the Commonwealth Parliament. Section 39(2) of the Judiciary Act 1903 invests “... the several Courts of the State” with federal jurisdiction within the limits of their own jurisdictions. Accordingly, the Local Court was properly seized with jurisdiction to hear the matter.

6. No federal court had exclusive jurisdiction to deal with the proceedings. This was a claim for a monetary judgment arising from an obligation of R. to pay his local council rates. It was not a matter within the jurisdiction of any federal court, let alone within the exclusive

jurisdiction of any federal court.20 Application for forfeiture of two firearms

In DPP v Pain MC 20/2018, an application was made in a murder charge for forfeiture of two firearms. The defendant consented to the forfeiture of the shotgun but not the rifle.HELD: Forfeiture of both the shotgun and the rifle ordered.1. It was clear, from the evidence of the CCTV footage from P.'s home, that he physically “carried” the rifle to his ute before the murder. The finding that P. “carried” the rifle on that occasion was enough to engage the closing words of s151(1) of the Firearms Act.

2. It would be a rare case – if ever – that a person convicted of murder by shooting with a firearm would be able successfully to resist forfeiture of any of his or her firearms, whether or not they were used in or in connection with the offending, whether or not they were registered and he or she was licensed, and whether or not they were of sentimental value.

3. In all of the circumstances, an order for forfeiture of both the shotgun and the rifle pursuant to s151(1)(a) of the Firearms Act was made.

21 Motor vehicle collision – whether contract void for uncertaintyIn Roehlen v Mikhail MC 21/2018 a driver involved in a motor vehicle collision entered into a hire car agreement while his vehicle was being repaired. The Magistrate held that the contract to supply the vehicle was void for uncertainty and that the owner did not suffer a compensable loss. Upon appeal-HELD: Appeal allowed. Matter remitted to the Magistrates' Court for arbitration by a Magistrate other than the original Magistrate.1. All the essentials of a contract must be settled before the contract is enforceable. What will constitute ‘essentials’ will depend on the particular contract under consideration and the surrounding circumstances. If, for instance, the contracting parties agree that an otherwise essential term such as price is left in abeyance to be agreed between them at some future date and in default of such agreement to be determined by a third party or by arbitration, then the agreement will be valid.

2. It was not open to the Magistrate to conclude that merely because the agreement was silent as to price, then the contract ‘must be considered void’. The Magistrate did not appear to have made an attempt to implement the terms of the contract. The Magistrate ought to have considered whether the agreement between R. and Right2Drive evinced an intention by both parties to be bound by the agreement, notwithstanding that no price had been stipulated. The Magistrate needed to examine the executed nature of the agreement in assessing the intentions of the parties. On the evidence, it would have been open to the Magistrate to conclude that by leaving the agreement silent as to price and by executing the contract, the parties agreed that the price was to be fixed later and that, whatever the rates may have been, they would not have to be paid by R. but would have to be paid by a third party. In this circumstance, the elements of the contract, whilst unusual, would be certain between the parties.

3. Even if the relevant hire contract was not enforceable against R., he had still suffered compensable loss arising from the loss of use of his vehicle during the repairs.

22 Charges of common assault and breaching family violence orderIn Shepperd v Cannell MC 22/2018 the Magistrate believed the evidence of the complainant and rejected the evidence of the defendant. Upon appeal-HELD: Appeal dismissed. Decision of the Magistrate affirmed.1. It is well settled that a motion of this nature was not to be treated as an appeal by way of rehearing. The question was whether upon the evidence the Magistrate might, as a reasonable person, have come to the conclusion which he or she did. Accordingly, it was not for the judge conducting the review to weigh the evidence and reach his or her own conclusions.

2. In this case, on an assessment of all of the evidence, S. could not demonstrate that the decision reached by the Magistrate was not reasonably open to him, in the sense that he could not, as a reasonable person, have come to the conclusion of guilt. The finding of guilt depended entirely upon the Magistrate accepting the version of the partner, at least as to the relevant events in the bedroom, as reliable and accurate. By necessary implication, this involved a rejection of the version provided by S. The Magistrate was clearly entitled to believe the evidence of the partner and reject the evidence of S.

3. Ultimately, the Magistrate, as a fact finder, was entitled to believe the partner and reject the veracity and reliability of S. He was entitled to do so, notwithstanding that some of the detail in the partner's evidence may not have been consistent with the evidence of other

witnesses or prior statements made by her. The weight to be attributed to such aspects of the partner's evidence was a matter for the Magistrate. In this case, having regard to all of the evidence, it could not be concluded that the Magistrate's satisfaction of guilt beyond reasonable doubt was not reasonably open to him. Accordingly, there was no merit in ground 1 of the appeal.

4. The Magistrate's finding of guilt in respect of both charges was reasonably open on the evidence. It followed that the motion, insofar as it concerned the finding of guilt, failed.

23 Bail – charges of kidnapping, false imprisonment and unlawful assaultIn Re Petkowski MC 23/2018, the Magistrate refused an application for bail. Upon appeal-HELD: Bail granted with special conditions that adequately ameliorate potential risks that might follow upon the grant of bail. 1. Whilst there were issues demonstrating reasons why bail should have been refused, the Crown was unable to point to any additional persuasive evidence in support of the arguments made, for instance, a significant criminal history of itself, or a history of defiance of previous grants of bail or court orders; a history of previous assaults committed by P.; or evidence of threats made towards the victim, or for that matter, other people. P. appears to have been an offender of this kind for the first time, and further, the period since his arrest had been his first time in a custodial setting.

2. P. pointed out that he was not in an exceptional circumstances or show cause situation, and accordingly the presumption of bail applied. Additionally, he pointed to the availability of stable accommodation; his good work history; the willingness of his mother to support him and supervise him; his limited previous criminal history and his history of compliance with previous court orders; unresolved conclusions about his level of involvement in the actual offending; the possibility of a significant delay before the matters become resolved; and the possibility that P. may receive a non-custodial penalty.

3. In the circumstances, and having weighed the evidence and the submissions from both parties, it was decided that bail should be granted. The Crown did not persuade the Court that there existed such unacceptable risk factors that would cause the denial of the application for bail. Accordingly, P. was granted bail, but with special conditions that adequately ameliorated potential risks that might follow upon the grant of bail.

24 Charges of blackmail – applicants not immune from prosecutionIn Reardon & Setka v Magistrates’ Court of Victoria & Anor MC 24/2018 the defendants were charged with blackmail but claimed that they were immune from prosecution on the basis that the conduct alleged would if proved constitute an ancillary contravention of a Commonwealth Act. HELD: Appeal dismissed.1. The ancillary contravention provision which was the focus of the current proceeding was s76(1)(d) of the CCA, particularly the words ‘a person ... has ... attempted to induce ... a person ... by threats ... to contravene ... a provision [of pt IV]’, read together with the provisions of s45E(2)(a). The applicants relied on the asserted similarity between these words, and the following words in s87 of the Crimes Act 1958: ‘A person is guilty of blackmail if ... with intent to cause loss to another, he makes an unwarranted demand with menaces.’

2. The conclusion that the immunity from criminal liability was confined to the subject matter contained within the various paragraphs of s78 meant that the immunity did not extend to a separate offence at common law, or under another statute, merely because the conduct that fell within one of the paragraphs incorporated by reference in s78 also constituted the commission of that offence.

3. It followed from this analysis that the judge correctly concluded that the immunity in s78 applied only to offences the elements of which were, at least in substance, the same as the elements that must be proved to establish a contravention or ancillary contravention of a relevant provision of pt IV. If a statute creates an offence, the elements of which can be satisfied without establishing the elements required to prove a contravention or ancillary contravention of a relevant provision of part IV, or an offence which requires proof of elements additional to those required to prove such a contravention, s78 did not provide an immunity from criminal liability in respect of that offence.

4. Blackmail, under the provisions of the Crimes Act 1958, is an offence against property, involving gain or loss in ‘money or other property’. The conduct that falls within s45D and 45E of the CCA is in no way similarly constrained. Of course, there can be some degree of overlap between these forms of unlawful behaviour, but they are far from coterminous in nature.

5. Accordingly, the applications for leave to appeal were granted but the appeals were

dismissed.25 Children’s Court – whether exceptional circumstances existed

In LM & Anor v Children’s Court of Victoria & Anor MC 25/2018, a Magistrate concluded that breaches of the Crimes Act should not be dealt with in the Children’s Court. Upon appeal-HELD: The Magistrate's orders were quashed and the charges remitted to the Children's Court to be dealt with by a different Magistrate.1. The exceptional circumstances provision refers to the nature of the charges and the circumstances of the accused relevant to the charges rather than extraneous matters.

2. The security issue and potential disruption identified by the Magistrate were obviously of great importance, but they were not to be dealt with by relying on the exceptional circumstances provisions in s356(3)(b) of the Children, Youth and Families Act 2005 and thereby deciding that the charges were not suitable for summary hearing. Other administrative and security steps needed to be taken to deal with the behavioural issues that the particular plaintiff was understood to present.

3. In taking into account Court security issues and disruption which might be caused by the conduct of one of the children, the Magistrate took into account a legally irrelevant matter not permitted by the statute.

4. Accordingly, the orders made were quashed for jurisdictional error and error of law on the face of the record and the charges remitted for rehearing before a different Magistrate.

26 Bail application – whether applicant showed causeIn Lebdeh v Gaffney MC26/2018 the applicant for bail was charged with 13 offences involving drugs, resisting and assaulting police and dealing with the proceeds of crime. The applicant had to show cause why his detention in custody was not justified.HELD: Application granted. L. showed cause why his detention in custody was not justified.1. While L. had been subject to community correction orders (“CCOs”) which included assessment and treatment conditions concerning drugs, he had never been involved in a residential rehabilitation programme.

2. In the circumstances of this case, the delay between arrest and the likely hearing date was another important factor pointing towards bail. It was possible that when being dealt with on the charges, L. could receive a sentence with an imprisonment component a good deal shorter than the time spent in custody.

3. While $5,000 may not seem like a great deal of money to some, it is a substantial amount for the proposed surety himself. L.'s father is a pensioner who has saved the $5,000 for his own funeral. As dark as that thought might be, it is significant that he is prepared to put up those funds for the purposes of his son’s bail.

4. Finally, the strict conditions intended to be imposed – none of which was disputed by either party – gave the confidence that, while there may well be risks of the kinds alleged in this case, any such risks were reduced so as not to be at an unacceptable level.

27 Summary hearing well and true ‘off the rails’In DPP v Benjamin Nagler MC27/2018 the defendant was charged with assaulting his mother and his mother’s boyfriend. The Magistrate ruled that the recorded interviews were not admissible and dismissed the charges. Upon appeal-HELD: Appeal allowed. Decision of the Magistrate quashed and the matter remitted to the Local Court to be dealt with according to law.1. The Magistrate was required to make an assessment of the probative value of the evidence. There was no evidence before the Court as to what either witness said in their DVEC. There was nothing in the record of proceedings to suggest that the Magistrate even knew what the allegations were. A small portion of a facts sheet was tendered in the re-examination of the police officer but this did not include the substance of the allegation or what either witness said in the recorded interviews. In those circumstances, it was impossible for the Magistrate to make any informed assessment of the probative value of the evidence.2. It was unnecessary to go into further detail, or to purport to lay down procedures that govern the conduct of a voir dire, because it was patently clear that the process adopted in the Local Court in the present case was fundamentally wrong. It cannot be controversial that the minimum requirement was that the Magistrate be aware of the content of the evidence he was being asked to exclude. It was also necessary that the police officer answer questions about any timing discrepancies that were said to exist in the recordings.

3. The adjournment application ought not to have been determined on the basis that the power to adjourn (or to allow oral evidence) was limited to cases where “the reason for the

inadmissibility was beyond the control of the prosecution generally where there has been say a death or where there has been a breakdown in communications”.

4. It followed that the appeal was allowed, the order dismissing the proceedings be set aside and the matter remitted to the Local Court to be dealt with according to law.

5. The Court made a costs order in favour of the plaintiff and provided the defendant, if otherwise entitled, to a certificate under the Suitors Fund Act.

28 Marriage – one person not of marriageable age – Marriage performer chargedIn Omerdic v Angland MC28/2018 the person who married the couple was charged with an offence. The Magistrate convicted the person conducting the marriage. Upon appeal-HELD: Appeal dismissed. 1. A person is of marriageable age if the person has attained the age of 18 years. It is not in dispute that at the date of the ceremony Ms C was not of marriageable age. Where either of the parties is not of marriageable age the marriage is void.

2. To the point the video recording stopped, the participants, including O., were proceeding with the ceremony as if to completion. The completed and signed Certificate was evidence of the intention of those present to complete the ceremony. When interviewed, O. said what was seen on the video recording looked like a marriage, and that Mr Shakir and Ms C left believing they were husband and wife, and that it was recognised they were married. A conclusion that the ceremony was completed followed as a rational inference from this evidence.

3. By the time O. performed the ceremony, he had been practising as an Imam and authorised marriage celebrant for almost 30 years, and in that role had been solemnising marriages. It was open to the Magistrate to conclude that O. was aware that an Islamic marriage solemnised by him was recognised as marriage pursuant to Australian law.

4. It was open to the Magistrate to find that the ceremony performed by O. between the parties was solemnisation of a marriage in accordance with s45(1) of the Act.

5. It was a matter for the Magistrate to weigh the character evidence against the evidence which he might have concluded was adverse to credit. The point on appeal was that it was open to the Magistrate to conclude that O.'s credit was significantly impugned, and on that basis to not accept O. when he said he had not intended to perform a marriage.

6. It remained open to the Magistrate, weighing all of the evidence including the evidence as to good character, to conclude that the mental element of the charge was established and find the charge proved.

29 Infringement notices issued & not paid – application made to revoke the enforcement ordersIn Re Greco MC 29/2018 the defendant failed to pay 61 infringement notices and applied to the Magistrates’ Court for the enforcement orders to be revoked. The Magistrate refused the application. Upon appeal-HELD: Proceeding dismissed.1. The enforcement orders which G. sought to revoke were made over three years ago, and that in the period since he has made three applications to have them revoked. In the circumstances of this case, the public interest in finality of litigation weighs against the extension of time for commencement of the proceedings being granted.

2. G.'s application to review the decision of the Magistrate was without merit. First, it was within jurisdiction for the Magistrate to consider the hearing before the Judicial Registrar. The Magistrate was required by r16(4)(a) of the Judicial Registrars Rules to consider G.'s application and accompanying affidavit. The Judicial Registrars Rules do not otherwise restrict the matters to which the Magistrate could properly have regard when determining the application. The application by G. was for review of the hearing and determination of this proceeding constituted by the Judicial Registrar. In large part, G.'s complaint in the application was that he had not been accorded procedural fairness in the hearing before the Judicial Registrar. But by considering the hearing before the Judicial Registrar, the Magistrate was responding directly to the form and substance of the application to him by G.

3. There was no failure on the part of the Magistrate to have regard to relevant considerations when determining G.'s application.

4. The Magistrate held that no satisfactory reason was given by G. which would justify

revocation of the enforcement orders and referral of the infringement offences for trial by court. There was nothing in the decisions of the Judicial Registrar or the Magistrate to suggest that either doubted G.'s evidence in relation to his correspondence and interactions with the enforcement agencies. Rather, the Magistrate's reasons were consistent with him concluding that corresponding with the enforcement agencies was not a satisfactory reason to explain the failure to make an election pursuant to s16 of the Infringements Act 2006, and did not justify revocation of the enforcement orders.

5. There was no merit in G.'s argument that he was denied procedural fairness. G. took the opportunity to provide affidavit evidence and written submissions in support of his application to the Magistrate. G. was accorded procedural fairness by the Magistrate and the Judicial Registrar on the applications before them.

30 Sentencing – imprisonment and CCO – time served – contravention of CCOIn Luu v The Queen MC30/2018 the defendant was sentenced to imprisonment for multiple offences plus a CCO. He contravened the CCO and was sentenced to imprisonment. The Court imposed a sentence in relation to the CCO which was double the maximum time specified. Upon appeal-HELD: Appeal allowed. L. re-sentenced to 31 months' imprisonment with a non-parole period of 24 months.1. Under s83AS(1)(c) of the Sentencing Act 1991 ('Act'), two possibilities arise when a Court is faced with a contravention of a CCO that was imposed in combination with a sentence of imprisonment. The following matters tell in favour of setting aside the original term of imprisonment before imposing another term of imprisonment, for which the earlier time served will be declared as pre-sentence detention:

(1) Section 83AS(1)(c) of the Act requires the Court to deal with the offender ‘as if it had just found him or her guilty’ of the earlier offending.

(2) Section 18(1) of the Act requires the Court to declare pre-sentence detention for any period of imprisonment already served under a sentence for the same offence ‘unless the sentencing court ... otherwise orders’.

(3) If the earlier term of imprisonment is not set aside, there remains a risk that the imposition of two separate sentences of imprisonment might exceed the maximum prescribed period of imprisonment for the relevant offence.

(4) The imposition of two separate sentences of imprisonment for the same offence has the capacity to affect what might otherwise be regarded as an entitlement to the fixing of a non-parole period under s11(1)(b) of the Act where the total period in custody ordered in respect of a particular offence exceeds two years.

2. The better approach is for the Judge to set aside the whole of the sentence imposed (that is, by cancelling the CCO and setting aside the term of imprisonment earlier imposed). The Court would then sentence afresh, ‘as if [the Court] had just found [the offender guilty]’ of his or her earlier offending. Pre-sentence detention would then be declared, and would include the time already served by the offender under the original sentence of imprisonment. This approach would see an offender’s entitlement (if any) to the fixing of a non-parole period being the same irrespective of whether a sentence of imprisonment was first imposed, or imposed following the contravention of a CCO that was an element of a combination sentence. This approach decreases the possibility of anomalous outcomes.

3. The Judge imposed a second term of imprisonment in respect of the earlier offending. Moreover, in sentencing L., the Judge did not take into account the 12-month period served prior to the commencement of the CCO. That approach produced, what has been conceded to be, a manifestly excessive sentence — and one that breaches principles of totality.

4. For the contravention of the CCO, L. pleaded guilty to the offence and was sentenced to two months’ imprisonment. The maximum term of imprisonment is three months. While L.'s breaches of the CCO were a serious contravention of that order, they were not deserving of the maximum term of imprisonment. Moreover, the Judge should have given credit for L.'s plea of guilty.

31 Children’s Court hearing – whether order appropriateIn Secretary to the Department of Health and Human Services v Children’s Court of Victoria and Ors MC 31/2018, an interim accommodation order was made in the Children’s Court and the question was whether it was in the best interest of the child to remain with his mother. Upon appeal-

HELD: Appeal dismissed.1. Ordering that a child be removed from its mother (and/or father) is an extremely serious step for a Court to take. The seriousness of such an order is reflected in the overall framework and relevant provisions of the Children, Youth and Families Act 2005 (CYFA).

2. Pursuant to s8 of the CYFA, the Children’s Court is required to have regard to the principles set out in pt 1.2 of the CYFA. Section 10, which appears in pt 1.2, sets out what is referred to as ‘best interest principles’. Section 10(1) provides: For the purposes of this Act, the best interests of the child must always be paramount.

3. Section 10(3)(g) of the CYFA is framed in absolute terms and only applies where a child is to be removed from the care of its parents. A plain English reading of s10(3)(g) suggests that a Court cannot remove a child from the care of its parents unless unacceptable risk has been established. It was for the Secretary to satisfy the Court that there was an unacceptable risk of harm. While other factors will be relevant, risk of harm is not the only consideration. All the factors that bear on the best interests of the child must be considered—without this the Court will not be empowered to remove the child from its parents.

4. The effect of s162(3) of the CYFA would appear to be that the test is ultimately a lower one than on the balance of probabilities. The Court therefore has a wide discretion in deciding whether any given risk is likely and hence whether it is unacceptable.

5. When the evidence before the Court was considered as a whole, with particular reference to the factors and considerations referred to in s10(1) of the CYFA, it was in the best interests of the child to remain with its mother as per the interim accommodation order made by the Magistrate on 28 March 2018.

6. In reaching that conclusion, considerable comfort was gained from the conditions the Magistrate imposed upon her. It is well-established that a risk that might otherwise be unacceptable can be made acceptable by the imposition of conditions, whether this be in the context of granting bail, or in the context of an interim accommodation order. If the mother breached any of those conditions the child will likely be taken from her. It was emphasised to the mother (and father) that if she did not comply with these conditions, and there was any risk of harm to the child, it was very likely the child would be taken from her.

32 Long Service Leave owing – employer chargedIn Joseph v Worthington & Anor MC 32/2018, an employer was charged with an offence of failing to pay an employee the full amount of long service leave. The employer was found guilty by a Magistrate and a judge in the Supreme Court. Upon appeal-HELD: Application granted and allowed, the orders of the County Court set aside and the charge dismissed.1. The purpose of the Long Service Leave Act 1992 (LSLA Act) is to make provision with respect to the long service leave entitlements of certain employees.

2. It should be noted that;(a) That sub-s(1) of the LSLA Act provides for a deeming provision in respect of the commencement of entitlement; (b) The employer is required to pay the employee’s entitlement on the day upon which long service leave is deemed to have started; (c) The plain words of sub-s(2) impose an obligation to pay ‘on that day’; (d) Subsection (2) creates a specific offence. It does not simply create an obligation which is subsequently reinforced by a general penal provision relating to breach of an employer’s obligations under this part of the Act.

3. The meaning of the text of the relevant provisions is plain, namely, that the obligation is to pay on that day the employment ended, and that neither its context nor its purpose require it to be given other than its plain meaning. The sub-section provides for a specific offence and s161 of the LSLA Act conferred a power on the Magistrates' Court to order payment of arrears on conviction. And s77(4) fixed a limitation period of five years for the institution of proceedings in respect of the offences.

4. It followed that the employee (or potentially a relevant organisation) was still within time to institute civil proceedings for recovery of the long service leave entitlement owed. Once again, the LSLA specifically regulated the relevant limitation period.

5. The subject matter or purpose of s72(2) does not require it to be given other than its plain meaning. It may be accepted that s72(1) results in a continuing obligation to pay long

service leave entitlements (for which there can be recovery by means of a civil claim) but it does not follow that s72(2) creates a continuing summary offence. The elements of the offence are plainly stated in the sub-section itself. The offence was complete on the day the employment ended and the required payment was not made. The charge was not brought within time.

6. Accordingly, leave to appeal was granted and the appeal allowed. The orders of the County Court were set aside and the charge dismissed.

33 Application for bail – applicant required to show causeIn Re Benhaddow MC 33/2018 a defendant was required to show cause why he should be granted bail. Bail had been refused by a Magistrate. HELD: Application granted. A strong set of conditions to be imposed.1. B. faced being remanded into a custodial setting for the period leading up to the trial. It was put on his behalf that this would represent a substantial delay given the circumstances of B.'s alleged offending, and his background. Against that, the allegations were serious and involved an armed robbery in company that occurred in the victim’s home. It was alleged that the relevant weapon was a firearm, and that it was operational. However, fortunately for the victim, despite being assaulted and restrained, he suffered no physical injury. He was doubtless traumatised as a result of the events that occurred in his home, as well as the events he alleged happened some weeks later and he remained feeling unsafe.

2. The unacceptable risks were:(a) B.'s potential to re-offend;(b) The possibility that he will tamper with witnesses, particularly the complainant, or with the evidence; and (c) B.'s ongoing communication with his alleged co-accused.

3. Taking all matters into account, B. showed cause why his detention in custody was no longer justified. The matters of unacceptable risk which remained of concern to the Crown could be dealt with by a strong set of conditions directed towards B.'s continued residence at the family home, with a curfew and other conditions.

34 Magistrate refused to uphold claim of apprehension of biasIn Cunningham v Local Court of New South Wales MC 34/2018, a Magistrate refused to uphold a claim of apprehension of bias. Upon appeal-HELD: Leave to Appeal refused. 1. If a party considered that there might possibly be an appearance of bias because, known to the party but perhaps not to the Magistrate, a Corrective Services officer working in the court building was related to the party, it would be a simple matter to alert the Magistrate to that fact. The Magistrate could then consider whether he or she had any acquaintanceship with the officer and, if so, disclose it to the parties. If this gave rise to any concern of apprehended bias, it could be the subject of submissions by the parties and a determination made by the Magistrate upon a proper factual basis.

2. Ground 3 of the appeal asserted that the Magistrate acted outside jurisdiction by prejudging it and not determining it with an open mind and in an unbiased and fair manner. While the ground, as amended, asserted apprehended bias, what was asserted in submissions was actual bias. In large part, reliance was placed upon statements made by the Magistrate taken out of their context. On a fair reading of the transcript of all that was said, including the various opportunities provided by the Magistrate for evidence and submissions to be placed before him, there was no bias, either actual or that which might be reasonably apprehended.

3. Leave to appeal pursuant to s53(3) of the Crimes (Appeal and Review) Act 2001 (NSW) against the order made in the Local Court on 6 June 2017 refusing to vacate a hearing date and transfer the proceedings to another court was refused.

35 Motor traffic – driving whilst disqualified during period of disqualificationIn Edwards v Collins MC 35/2018 a driver was convicted of two offences whilst driving under suspension. Upon appeal-HELD: One ground of appeal granted the other refused.1. In relation to one of the convictions, E.'s position was that he could not be guilty of the Milpara offence as a matter of law because the three-month disqualification order on which the charge was based was invalid because of the retrospective effect of the Collie correction of sentence.

2. The Milpara conviction was set aside because during the Collie sentencing, E. was incorrectly told by the JP that under the RTA s51 he had 'lost' his licence for three months from 27 May 2015. This misinformation was then recorded by the court, the police and

probably the licensing authority. This misinformation induced the respondent to charge E. with the Milpara charge and E. believed that he was guilty of it. It no doubt induced E. to plead guilty to the charge, even though as at the date of the Milpara offence was alleged to have been committed, E. held a valid driver's licence. In these circumstances it would have been a miscarriage of justice to allow the conviction to remain.

3. When the Mumbalup conviction was recorded and the disqualification order was imposed, the Milpara conviction and sentence were valid and binding orders of the Magistrates' Court. It had to be obeyed by E. until it was set aside or ceased to have effect by its effluxion. The Mumbalup charge was laid and E. convicted and sentenced for it prior to the appeal against the Milpara conviction and sentence being instituted.

4. There are strong policy reasons why sentences imposed by courts should be complied with and enforced unless and until they are set aside. E. was aware of the disqualification order made by the Magistrates' Court as part of the Milpara sentence. He chose to drive in knowing breach of that order. He was charged with, and pleaded guilty to the Mumbalup offence. The appeal against the Milpara conviction and sentence was not commenced for another 14 months. Even though the Milpara conviction and sentence was set aside, the circumstances did not require the Court to set aside the Mumbalup conviction and sentence. The Mumbalup conviction was executed action to enforce the Milpara disqualification order. It was complete prior to the Milpara charge being set aside. It remained a valid executed action. It was not rendered invalid or a miscarriage of justice by the setting aside of the Milpara conviction and sentence.

5. Accordingly, the Milpara conviction was set aside and the leave to appeal in respect of the Mumbalup conviction refused. No order for costs.

36 Suspended sentence of imprisonment previously imposed – sentence not activated when further offences committedIn Moore v Salter MC 36/2018, a defendant received a wholly suspended sentence but committed further offences and the sentence was not activated by the Magistrate. Upon appeal-HELD: Appeal allowed. The suspended sentence was activated and S. ordered to serve that sentence. S. re-sentenced to four months' imprisonment wholly suspended.1. Bearing in mind the wide sentencing discretion entrusted to the Magistrate, and the need to take into account the overall effect of the sentences in the manner just described, the sentence imposed in respect of the offences, other than the driving offences, was manifestly inadequate. The Magistrate correctly took into account the need to encourage and support any steps taken by S. towards his rehabilitation, and correctly considered that a probation order was part of an appropriate sentencing response. Such an order had been recommended in the pre-sentence report, the need for ongoing supervision was clearly established, and in relation to the family violence offences, the probation order facilitated the respondent's attendance at various courses, including the Family Violence Intervention Program.

2. However, in the circumstances of this case, and in relation to the offences in question, rehabilitation was not the only sentencing consideration. S. had committed a number of varied offences over a prolonged period. The behaviour in question was of a serious nature, and it was clear that S. had not been deterred from committing these offences, either by previous sentencing orders or by the fact that he was then subject to a suspended sentence. The offending revealed an ongoing disregard for the law, and a propensity for criminal behaviour, including violent conduct. His involvement in the assault was a serious matter. All of these considerations mandated a sentence which emphasised, not just the rehabilitation of S., but also general and specific deterrence.

3. Having regard to the material which was before the Magistrate, no Magistrate acting reasonably could have formed the opinion that it would be unjust to activate the suspended sentence. S. breached the terms of suspension on numerous occasions by committing a variety of offences over a period of approximately six months. Some of the offending occurred in circumstances which suggested that it was a spontaneous reaction to those circumstances, but much of the offending was either premeditated or committed with sufficient time for contemplation and reflection. All of it was serious, and constituted a flagrant disregard for the terms of the suspended sentence. Accordingly, the suspended sentence was activated and was to be served by S.4. In view of the ongoing pattern of flagrant offending in breach of the conditions of suspension, it could not be said that it was unjust to activate the sentence, and the Magistrate fell into error by so concluding.

5. The imposition of the disqualification period from driving did not render the sentence manifestly inadequate.

37 Civil proceedings commenced – application that plaintiffs provide security for costsIn Cosenza v Gill MC 37/2018, the plaintiffs were ordered by a Magistrate to stay the action until security was provided. Upon appeal-HELD: Appeal dismissed. The Magistrate did not err when exercising the discretion to order security for costs. The Magistrate did not err in failing to recuse herself for apprehended bias. 1. The English authorities establish that insolvency or poverty of an individual plaintiff is no ground for requiring him to give security for costs. In Australia, that basic rule does not remain unless removed by law. The Australian position has always been that the question of security for costs is a discretionary one guided by the relevant Rules of Court.

2. The discretion of the Magistrate was unfettered but the starting point in the exercise of the discretion was that the bare fact of impecuniosity was not of itself a reason to order a plaintiff, who is a natural person, to provide security for costs. It is such a significant factor that, unless other factors are brought to account, no order for security for costs will be made.

3. The Magistrate made it clear in her reasons that the impecuniosity of the plaintiffs was not of itself sufficient for an order to be made without other factors being involved. The Magistrate then had regard to a number of factors when exercising her discretion including the fact that the plaintiffs had commenced several other, almost identical, actions against a variety of defendants. She noted that the success or otherwise of those actions would have an impact on the defendant’s ability to recover its costs. Whilst accepting that the strength of the plaintiffs’ case was not a determinative factor, it was a matter she could have regard to. The Magistrate considered that there was a risk that the plaintiffs’ claim in this action would not be successful.

4. The Magistrate correctly took into account the fact that the second plaintiff had been declared bankrupt twice before. She noted that the second plaintiff’s second bankruptcy was relevant as it followed the failure or refusal to pay costs orders in the Federal Court. The Magistrate acknowledged that in 2014 the second plaintiff made arrangements with his creditors such that that bankruptcy was annulled but the subject of the creditor’s petition was by that time, five years old.

5. The appellant submitted that when exercising her discretion, the Magistrate took into account a number of personal factors relating to the second plaintiff/appellant when ordering security for costs against both appellants. Given the interrelationship between the two appellants in the cause of action (the familial relationship is also relevant) the Magistrate was entitled to do so.

6. The apprehension of bias principle involves a two-step process. The first requirement is the identification of what it is said that might lead a Magistrate to decide a case other than on its legal and factual merits. Secondly there must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits.

7. In relation to the Magistrate's relationship to a foundation, there had been none since 2009. The appellants were unable to articulate a logical connection between that relationship identified and any feared deviation from the course of deciding this matter on its merits. Accordingly, no error was shown in the approach of the Magistrate and the appeal was dismissed.

38 Warrant issued for at risk animalsIn Healey v RSPCA MC 38/2018, A Magistrate issued two search warrants for at risk animals on premises. The RSPCA executed the warrants and seized 54 of approximately 90 dogs that were on the premises. Healey challenged the lawfulness of the RSPCA inspector. HELD: Applicant's claim dismissed.1. The delegation to the Chief Operating Officer of the RSPCA had been validly exercised.

2. Whilst there are nuances in the difference between the words ‘allow’ and ‘authorise’, given the formality of the document, the use of the permissive word ‘allow’ was intended to mean and conveyed the requisite authority to take the step necessary for the RSPCA inspector to make the applications for the warrants under both sub-ss24G(1) and 24K(1) of the POCTA.

3. A decision or choice by an RSPCA inspector to make an application for warrants, rather than exercising the power under s24C of the POCTA, is a prosecutorial decision which is not

reviewable. This is not a situation where this step in the process is one which demands procedural fairness.

4. The evidence showed that the RSPCA inspectors acted reasonably in seizing the dogs and execution of the search warrants. There was no evidence from H. that would or could substantiate an allegation that the execution of the warrants was invalid, improper or unreasonable.

5. The preponderance of evidence was such that the state of the pens was consistent with that as described by the RSPCA, and the dogs’ welfare was at risk due to the housing conditions and the maintenance of the housing including the provision of appropriate bedding, water, general hygiene which was below the standard set out in the Code of Practice and fell short of the standards required. This was supported by the evidence of the RSPCA veterinarians.

39 Traffic offences – evidence – Constitutional LawIn Police v Jordan (No 2) MC 38/2018, J. was convicted of two speeding charges and the question of reliance on the lawfulness of the averment provisions occurred.HELD: Appeal dismissed.1. The averment provisions relied upon were not bad at law and did not breach the separation of powers or the ICCPR.

2. The Magistrate did not err when sentencing the appellant J. 40 Motor vehicle offences – Magistrate had jurisdiction to hear charges

In Monteith v Fitzgerald and the Magistrates’ Court of Victoria MC 40/2018, M. sought to raise before the Magistrate the question of jurisdiction of the Court to hear the charges.HELD: Leave to Appeal refused. 1. To succeed in his application for judicial review, M. had to show either that there was an error of law on the face of the record or a jurisdictional error made by the Magistrate. There was no challenge to the sufficiency of evidence to prove the three charges.

2. None of the three grounds relied upon by M. established an error that entitled him to obtain judicial review remedies. The Magistrates' Court has jurisdiction to hear cases involving motor vehicle offences; they are heard in Magistrates' Courts across Victoria and Australia every day of the week. The motor vehicle offences with which M. was charged were summary offences which the Magistrates' Court had jurisdiction to hear.

3. No error attracting judicial review was established. Accordingly, the proceeding was therefore dismissed and M. ordered to pay the first defendant’s costs of the proceeding.

41 Refusing breath test – informant absent on appeal hearingIn Toner v Beecroft and County Court of Victoria MC41/2018, T. was convicted of refusing a breath test. On appeal to the County Court, the Police Informant was not present but the defendant was found guilty and the same penalty imposed. Upon appeal-HELD: Appeal dismissed.1. Judicial review in the Supreme Court is a different process to appeal. It does not afford a person aggrieved by the decision of a lower court a general right of appeal on the law or the facts to the Supreme Court. In broad terms, judicial review is directed to the exercise of jurisdiction and the process by which the court or tribunal below reached its decision; not whether that decision is correct. The grounds on which the decision of a lower court may be set aside on judicial review are limited to jurisdictional error, failure to observe an applicable requirement of procedural fairness, fraud, and error of law on the face of the record.

2. The County Court Judge held that the evidence was sufficient for a case to answer, and further, in the absence of any evidence from the defence, established the prosecution case beyond reasonable doubt. There was no error in the Judge reaching that conclusion, given the whole of the evidence, some of which was identified by the prosecutor in her submissions.

3. The County Court Judge was entitled to conclude that certain words expressed a subjective belief on the part of the informant, that T. may have contravened s49(1)(a) or (b) of the Act. Further, the Judge was entitled to conclude that this belief was based on reasonable grounds, being the information that both the informant and the police officer had received over the police radio, observations made by, and recorded in, photographs taken by the Informant, and the observation by the police officer about the appearance of T.

4. In this case, when the reasons for the determination of the 'no case' submission were considered in the context of the whole of the exchange with both counsel, and the evidence, they were considered as sufficient.

42 Application for recusal of trial judgeIn QBH Commercial Enterprises Pty Ltd v Dalle Projects Pty Ltd (No 2) MC 42/1928, an application was made by two non-parties that the Judge should recuse himself for hearing an application for costs.HELD: Application granted. The Judge recused himself from the hearing and determination and made arrangements for the matters to be heard and determined by another Judge.1. In the absence of waiver or necessity, a judge should disqualify himself or herself if a fair minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question that the judge is required to decide.

2. The relevant test in an application such as this requires that it is the Court’s view of the public’s view, and not the Court’s own view, that is determinative. The application of the two step test in an application based on an apprehension of bias on the ground of prejudgment involves the identification of the conduct of the judge said to give rise to an apprehension of prejudgment as the first step. The logical connection that needs to be articulated in the second step is the logical connection between the conduct of the judge and the feared prejudgment of a question that the judge is required to decide. The test has been described as a “relatively undemanding ‘double might’” one.

3. There is a convention amongst courts that where there is a real possibility of an application being made for the judge to be disqualified prior to the hearing of a proceeding another judge should be found to hear the case. The reason for this convention is to avoid damage to the general reputation and public perception of the judiciary by unseemly public questioning of a judge or the public challenge to his or her appearance of impartiality. The present proceeding was beyond the initial hearing stage, but having regard to the way this application was put, it was fairly to be described as an application made prior to the hearing of the issues with which the application was concerned and, consequently, was, in practical terms, made prior to the hearing of the relevant issues.

4. Where a reasonable apprehension of bias issue is raised at an early stage, a court should not be reluctant to reconstitute itself so as to avoid the problem of the reasonable apprehension of bias.

5. As the application occurred at an early stage with respect to the issues in question, it was the Court's duty to be reconstituted.

43 Income tax – defendant failed to lodge returns – service of charges by postIn Guss v Storace (Australian Taxation Office) MC 43/2018, G. failed to provide income tax returns and ATO issued four charges averring that the charges were duly served on G. by pre-paid letter. The question was whether service by post was proved.HELD: Appeal refused. Service by post was properly found proven and G. established no error on the part of the Magistrate. 1. There was evidence from a taxation employee that he placed the notice in an envelope with a window through which the address could be seen. He placed it in an outgoing mail tray. Another employee stated that the office used envelopes marked ‘paid’ and that postage was paid on a charge account with Australia Post. She collected all the letters in the mail tray and recorded their number for charging purposes before giving them to an Australia Post driver for delivery. Although the employee could not say that the contents of the mail tray included an envelope addressed to the applicant, the other employee could, and did. Not only was it open to the magistrate to infer from this evidence that postage had been effected, the conclusion was inescapable.

2. It was true that the Taxation Office bore the onus of proving service; the evidence he led sufficed to do so. In those circumstances, it was for G. to seek to displace that evidence, or to adduce evidence undermining the inferences which the Taxation Office sought to draw from it. It was also incumbent on G. to put to the witnesses factual possibilities which he wished to raise by way of submission. But even leaving those considerations to one side, the possible breaks in the chain of evidence to which G. pointed rose no higher than speculation. They did not justify a conclusion that the magistrate could not reasonably have found service proven to the requisite standard on the evidence before her.

3. Accordingly, service by post was properly found proven and G. established no error on the part of the magistrate. The appeal had no real prospect of success and leave to appeal was refused.

44 Unsafe food – charges laid – whether Magistrate erred in finding that the charges gave reasonable information as to the nature of each offenceIn Southgate Management Pty Ltd v Nitschke MC 44/2018, the City of Melbourne filed 39

charges against SM P/L that the charges contravened provisions of the Food Act 1984. The Magistrate struck out six charges and upheld the validity of the remaining charges. Upon appeal-HELD: Appeal dismissed.1. The common law requires that the defendant must be provided with the substance of the charge which he or she is called upon to meet, and the court be informed of the identity of the offence with which it is required to deal. Indeed, a defendant is not able to plead to a charge unless he knows the precise case which is the basis for the preferred charge. But as the cases make plain, the necessity to be able to identify the particular occurrences or transactions which are the subject of the charge — particularly those tried on indictment — is not concerned solely with forensic prejudice to the defendant.

2. Although legislation has to some extent modified the common law, the applicable legislation did not go so far as to abrogate the essential common law requirement that a charge must condescend to identifying the essential factual ingredients of the actual offence. The facts need not be as extensive, however, as those that a defendant might obtain on an application for particulars.

3. In Victoria, the Criminal Procedure Act 2009 spells out the statutory requirements for a charge. Thus, by virtue of s6(3), a charge sheet must be in writing, signed by the informant personally and comply with Schedule 1. It must state the offence and contain particulars that are necessary to give reasonable information as to the nature of the charge.

4. Charges 1, 2 and 5 were sufficient to inform SM of the legal nature of the relevant offences together with their essential factual elements. The fact that further particulars would need to be provided should a request for them be made did not render the charges invalid.

5. Charges 3, 4, 6 and 7 particularised the unsafe food that was sold as being 'egg mayonaise'. The absence of more specific particulars did not render the charges invalid.

6. Each of the impugned charges was valid, in that it identified the provision (or provisions) of the Code said to have been breached, and a brief description of the manner in which the relevant provisions had been breached. And although it might be accepted that it would be necessary upon request to provide SM with more precise particulars of the relevant part of its food premises, the charges as framed sufficiently complied with statutory and common law requirements.

7. Accordingly, SM did not make out an entitlement for relief by way of certiorari or declaration and its proceeding was dismissed.

45 Probationary driver failing to display P PlatesIn Stanojlovic v DPP & Anor MC 45/2018 S. failed to display his P Plates and was convicted by a Magistrate and ordered to pay a fine and costs. On appeal to the County Court, the Judge dismissed the charge on the basis that S. had a defence of honest and reasonable mistake. Upon appeal to a Supreme Court Judge, it was held that absolute liability applied and the charge was remitted to the County Court for hearing and determination according to law. Upon appeal from the Supreme Court’s judge’s decision-HELD: Applicant's leave to appeal refused.1. The question to be considered was whether the relevant element of the offence was one of absolute liability.

2. It is clear that the graduated licensing regime is an important aspect of road safety that requires compliance by probationary drivers. That compliance is aided by the imposition of absolute liability with respect to the requirement to display the relevant P plate on the vehicle. It is not to the point that there may be other provisions that deal with matters that may have a more direct and immediate effect on road safety such as speed limits or permissible blood alcohol levels. The regulation is part of the regime that regulates road safety, it is of a regulatory rather than a truly criminal character, and compliance with it is likely to be more effective if a charge for failure to display the applicable P plate brooks no argument about the honesty and reasonableness of the belief of the driver.

3. The graduated licensing scheme and the ability to clearly identify drivers who hold a probationary licence forms an important part of the road safety regime erected by the Road Safety Act 1986 (RSA) and Road Safety (Drivers) Regulations 2009 (RSDR).

4. The relatively narrow exclusion contained in reg 55(3) cast little light on the broader question of construction that arose in this matter. The exclusion did not undermine the place

of reg 55 within the overall road safety regime erected by the RSA and RSDR.

5. Accordingly, the application for leave to appeal was refused.46 Motor vehicle accident damages

In Falcon v Johnston MC 46/2018 a Magistrate held that the plaintiff was entitled to hire-car expenses for 52 days after the accident. Upon appeal-HELD: Appeal dismissed.1. It is a long-accepted principle of the law relating to mitigation of loss that a plaintiff is not required to sacrifice or risk its property or rights in order to mitigate loss. If a party placed in a difficult position by reason of the breach of a duty owed to that party acts reasonably in the adoption of remedial measures, the party is not disentitled to recover the cost of the remedial measures merely because the party in breach can suggest that other measures less burdensome to the party in breach might have been taken.

2. The question was not whether J. could have bought a replacement vehicle earlier but whether, in all of the circumstances, including her business need for a reasonable contingency buffer, it was reasonable for her not to buy a replacement vehicle until after the write-off payment was made. The Magistrate considered her choice to be reasonable. On the facts as found, this conclusion was not only open but (with respect) correct.

3. Circumstances are bound to vary from one case to the next. All that could be said in the present case was that the Magistrate was not wrong in law to order compensation in respect of hire-car expenses for 52 days, for the objective circumstances as found justified the conclusion that this was reasonable.

47 Police search of an arrested person – meaning of ‘forensic procedure’In DPP v Tupper MC 47/2018 T. was charged with trafficking and possessing heroin. The Magistrate excluded the evidence because the search of T. constituted an unlawful forensic procedure under the Crimes Act 1958. Upon appeal—HELD: Appeal allowed. Dismissal charges set aside. Remitted to the Magistrate for determination according to law. 1. The relevant provisions for present purposes fall under the heading ‘Forensic procedures’, commencing with s464R of the Crimes Act 1958. This group of provisions, relevantly, provides power to conduct a forensic procedure on an adult who is suspected of committing a crime, including a physical examination. The lawful exercise of the power requires the informed consent of the suspect, an order of a Magistrates’ Court or, in some circumstances, the authorisation of a senior police officer.

2. There was no dispute that in the present case none of the preconditions for the lawful conduct of a forensic procedure were satisfied.

3. There is no reason to doubt the existence of a common law power enabling police to search a suspect in lawful custody, including one that might involve the removal of some or all of the person’s clothing. This particular power is an incident of the power of arrest itself. The power stems from the duty of police to take reasonable measures to ensure that a person in custody does not harm himself, herself or others, escape, or destroy or dispose of evidence. The shorthand expression ‘safety and evidence search’ captures these purposes.

4. With these principles in mind, there was no justification for concluding that the introduction of sub-div 30A, and in particular the provision defining a physical examination of the body as a forensic procedure, abrogated or interfered with the common law power of police to conduct a ‘safety and evidence’ search.

5. There was no evidence before the Magistrate that would suggest that T. was a ‘relevant suspect’ within the meaning of the subdivision, or that the search was relevant to ascertaining whether T.'s body bore distinguishing marks or injuries that might tend to confirm or disprove his involvement in an indictable offence. Hence, it was not open on the evidence for the Magistrate to find that the particular search of T. which was the subject of this appeal was a ‘forensic procedure’ under the Act.

6. The search was conducted for an entirely different purpose and its lawfulness fell to be assessed against the scope of the common law power to conduct a ‘safety and evidence’ search at the point of arrest or upon taking a person into police custody. This the magistrate did not do.

48 Appeal against Coroner’s determination to release deceased to senior next of kinIn Smith v Coroners Court of Victoria MC 48/2018 there were two applicants for the release of the deceased. The Coroner decided to release the deceased to his wife rather than his mother

and step-father. Upon appeal-HELD: Appeal dismissed.1. The Coroner referred to s48 of the Coroners Act 2008 and the hierarchy set out there for determining who had the better claim to release of the body of the deceased. Mr Lilley died without a will and so there was no executor to whom his body could be released under s48(3)(a). The Coroner therefore determined that the next best claimant was his senior next of kin, as defined in s3 of the Coroners Act.

2. It was clear (and was accepted by all parties) that Ms Lilley was Mr Lilley’s spouse and his senior next of kin. Although they had been separated since about March 2017, they were still married at the time of his death. The Coroner treated that as determinative of the question of who had the better claim.

3. The objectives support an interpretation of s48 that enables the Coroner to identify quickly and with certainty the person to whom a body is to be released. It does not support the appellants’ interpretation of s48, which would require the Coroner to have regard to discretionary considerations not specified in the Act and could produce delay and uncertainty. For the Coroners Court to have to determine the kinds of factual disputes present in this case has an obvious potential to exacerbate the distress of grieving family members. The consequences of the appellants’ interpretation would be contrary to the express objectives of the legislation and cannot have been intended by Parliament.

4. The text of s48(3), its context and the legislative purpose all supported the Coroner’s approach to determining to whom to release Mr Lilley’s body. There was no error of law in the Coroner’s determination or the order that the body be released to Ms Lilley.

49 Proceeding for judicial review dismissed by Associate JusticeIn Crowther v Whitehorse City Council MC 49/2018 C. made an application to review the decision to prosecute in the Magistrates’ Court. The application was dismissed by an Associate Justice of the Supreme Court. Upon appeal-HELD: Appeal dismissed.1. Having reviewed the materials before the Associate Justice, and having heard argument, his Honour’s orders disclosed no error. C.'s proceeding was misconceived and, by his own admission, was an attempt to attract the Supreme Court’s supervisory jurisdiction so as to make his ‘criminal prosecution go away’. While there is a genuine question to be tried, as to the correct construction of r 200(2) of Road Rules, that question can and should be answered in the Magistrates’ Court. From there C. has rights of appeal to the County Court de novo and to the Supreme Court on a point of law. Indeed, since these remain open to him, C.'s use of O56 must be seen as an abuse of the processes of the Supreme Court.

2. C.'s application for judicial review had no real prospect of success. This is so because of the incurable procedural deficiencies identified by the Associate Justice. The ‘decision’ impugned by C. are insusceptible of review and, even if they were, the Supreme Court should not exercise its discretion because to do so would be impermissibly to fragment the workings of the criminal courts.

3. Judicial review is not a means of challenging the issuing of infringement notices. The proper procedure is provided for in the Act and includes internal review mechanisms, a right of hearing in the Magistrates’ Court, and rights of appeal to the County Court de novo and to the Supreme Court on a point of law. Since C. has not exhausted these avenues—indeed, he has not yet had his hearing in the Magistrates’ Court, which is stayed pending the outcome of this proceeding—his attempt to attract the Supreme Court’s supervisory jurisdiction was tantamount to an abuse of process.

4. Accordingly, C.'s appeal was dismissed. 50 Occupational Health and Safety – worker injured

In Metricon Homes Pty Ltd v O’Grady (VWA) MC 50/2018 an employer had an obligation to provide a safe workplace. Tiles were being laid of a roof of a residence before permanent Roof supports were installed. A person was injured when the roof collapsed. The question was whether it was reasonably practicable for Metricon to take measures to eliminate or reduce risk.HELD: Appeal dismissed.1. A reasonable defendant would understand the particulars as alleging that the risk arose from the roof tiling work in circumstances where a weight-bearing element of the frame in the alfresco area had not been installed. The act or omission said to constitute a contravention of s21(1) of the Act was the failure to obtain frame approval before allowing the roof tiling work to commence. It was clear that failure related to the one reason particularised

for the frame not being approved, that the PT braces had not been installed. The reasonably practicable steps to control a risk were clearly identified. Because the Magistrate found the charge proven on the case alleged in the charge and particulars, ground 1 of the appeal failed.

2. It was necessary to consider risk prospectively from the point of time of the act or omission of the employer alleged to constitute contravention of s21(1). In this case the act or omission alleged against Metricon was the failure to obtain an approved frame inspection before allowing roof tiling work to commence. The risk of the roof collapse arose from loading the roof with the weight of tiles when the weight-bearing PT braces had not been installed. There was no evidence the risk of collapse was limited to the times when tilers were on the roof laying tiles. Mr Bilston and Mr Newbegin attended the building site regularly in the course of their work for Metricon. The possibility existed that, other than at times when tilers were on the roof performing tiling, they might walk under or in proximity to the alfresco roof. As a consequence, Mr Bilston and Mr Newbegin were placed at risk of serious injury if the roof collapsed because it was loaded with the weight of tiles when it was inadequately supported. It was open to the Magistrate to conclude that the two persons had been placed at risk.

3. The Magistrate's analysis of evidence and conclusions of fact were responsive to and dealt with the substantial points raised by Metricon. The Magistrate's findings of fact determined the necessary content of the reasons and demonstrated the path of reasoning. That path of reasoning followed the relevant provisions of the Act.

51 Application for bailIn Re Sedat Ceylan MC 51/2018 In view of several charges he was facing, C. had to show a compelling reason why his detention in custody was not justified.HELD: Application for bail refused.1. In applying and interpreting the Bail Amendment (Stage 1) Act 2017, s1B requires regard to be paid to two competing considerations: on the one hand, safety of the community; and on the other, the presumption of innocence and the right to liberty. In an individual case there will be competing factors that tell in favour of bail (s1B(1)(b) of the Act), and others that tell against a grant (s1B(1)(a)).

2. In construing the expression ‘compelling reason’ in s4(4), one must be careful to ensure that the words are construed in the context in which they occur and having regard to the legislative purpose of the provisions of the Act. An examination of Schedules 1 and 2 of the Act discloses that the Schedule 1 offences are generally more serious than Schedule 2 offences. While the expressions ‘exceptional circumstances’ and ‘compelling reason’ direct attention to matters that might not necessarily be thought to fall on the one spectrum, plainly the ‘exceptional circumstances’ test in the Act is intended to be one that is more difficult to satisfy than is the ‘compelling reason’ test. So much might be observed from s4(6) which requires an offence that is both a Schedule 1 offence and a Schedule 2 offence to be taken to be a Schedule 1 offence for the purposes of s4 of the Act.

3. When one takes account of all of the matters required to be taken into account in a particular application, the question becomes whether there is compelling reason why the particular applicant’s detention is not justified. For an applicant required to show ‘compelling reason’, a synthesis or balancing of all relevant matters must compel the conclusion that the applicant’s detention in custody is not justified.

4. Coming back to the statutory language of the Act, in the present case, C. failed to show compelling reason why his detention in custody was not justified. C. has a poor criminal history and has prior convictions for failing to answer bail. The fact that he answered bail most recently, prior to being sentenced in September 2017 to his CCO, did not gainsay this proposition. Moreover, the use by C. of a false passport to flee to Turkey when facing the prospect of serious charges was hardly of assistance in his attempt to satisfy the compelling reason requirement of s4(4).

5. Ultimately, it was C.s' poor criminal history, prior convictions for failing to answer bail, flight to Turkey on a false passport and personal history that concluded that C. had not shown compelling reason why his detention in custody was not justified. Having considered all of C.'s circumstances and history, applying the Act having regard to the matters set out in s1B, it was concluded that C. failed to show compelling reason why his detention in custody was not justified.

52 Application for Bail by child aged 16 yearsIn Re FA MC 52/2018, bail for a child had been refused by the Children’s Court in relation to serious charges of assisting an offender and theft of a motor car in which two persons were

killed.HELD: Appeal allowed. Bail granted with a number of conditions. 1. FA was not required to show an absence of unacceptable risk, the burden of establishing an unacceptable risk in one or more of the prescribed ways resting with the prosecutor. Obviously, any grant of bail must carry some risk. Determination of whether an applicant relevantly poses an unacceptable risk therefore requires an evaluation of the suggested risk (or risks). Importantly, as the Bail Act 1977 recognises, there are some risks which may be rendered acceptable by, for example, the imposition of appropriate conditions of bail.

2. FA is a young person with a significant history of trauma. At times, this affects her behaviour and places her at risk of harm when her mental health is poor and her drug risk is high. In the relatively short time that she has been involved with Youth Justice, however, FA has built positive relationships with support workers and has turned to them when in need of their support.

3. It is a serious thing to consign a child to custody or detention pending the resolution of a criminal charge (or charges), particularly where — as here — it is far from a foregone conclusion that the child will receive a sentence involving detention consequentially upon a finding of guilt. Indeed, the custody or detention of a child should be avoided unless unavoidable.

4. Ultimately, the respondent failed to persuade the Supreme Court Judge that the putative risks could not adequately be addressed by the imposition of strict conditions.

5. Importantly, the evidence demonstrated FA’s new and positive involvement with Youth Justice, which provoked some optimism that she may be able to turn her life around. More to the point, perhaps, that new and positive involvement with Youth Justice, coupled with the strategies that had been put in place to ameliorate the risks that FA will commit further offences, endanger a person or fail to answer bail, persuaded the Judge that the putative risks were capable of being rendered acceptable by the imposition of appropriately strict conditions of bail.

53 Minor civil claim – defendant unable to attend court and asked for an adjournmentIn Arabzadeh v Wasim MC 53/2018, the defendant was unable to attend Court because he was overseas and he sought an adjournment which was refused by the Magistrate. Upon appeal-HELD: Appeal allowed. The Magistrate's order quashed and the claim remitted for hearing before another Magistrate.1. The ground asserted by A., namely that the Magistrate conducted the hearing in his absence, fell within the provision which allows appeals on the basis of a denial of natural justice.

2. The content of natural justice varies from case to case depending on factors such as the circumstances of the case, the nature of the inquiry, the rules under which the tribunal is acting and the subject-matter that is being dealt with.

3. Procedural fairness, which is one aspect of the rules of natural justice, requires that a person who may be affected by a decision be given a reasonable opportunity to answer it. The duty of a decision-maker to ensure that parties be given a reasonable opportunity to present their case does not require that the party takes up that opportunity or takes the best advantage of it. However, a failure to accede to a reasonable request for an adjournment can constitute procedural unfairness. Whether in any case the failure or refusal to adjourn a hearing amounts to a denial of procedural fairness will depend upon the particular circumstances of the case.

4. The Magistrate's refusal to adjourn the hearing was, in the circumstances, unfair and should not be allowed to stand. There was a strong reason to conclude that injustice had resulted. The travel itinerary sent with the request for an adjournment had the appearance of legitimacy. If true, it was a powerful reason to adjourn. Had the request for an adjournment been made earlier, it was difficult to see how the Magistrate could justly have refused it. There was material on the court file, in the form of documents provided by the parties in the course of the proceedings, for the Magistrate to see that A.'s defence of the claim was at least arguable, both as to liability for the claim and the amount of it. There were genuine issues of fact to be resolved. A.'s request for an adjournment was made more than a week in advance of the hearing date and there was no reason to conclude that another hearing date could not have been allocated relatively promptly. When the Magistrate decided to proceed to hearing

in the absence of A., there was no proper basis to conclude that a short further delay would have placed the respondent at any additional disadvantage other than by being kept out of his money if his claim was to ultimately succeed. Nor was there any reason to conclude that disruption to court business or other litigants was such as to warrant, in this case, depriving A. of a hearing on the merits. It resulted in a denial of natural justice.

54 Theft of a communication book and failure to returnIn Szabo v Moore MC 54/2018, a defendant was charged with theft of a book which she failed to return upon termination of her employment. The Magistrate found the charge proved. Upon appeal-HELD: Appeal upheld and conviction quashed. Remitted to the Magistrates' Court for determination according to law by a differently constituted court.1. If there was any reasonable explanation of the circumstances which was consistent with innocence, the applicant S. was entitled to a verdict of not guilty.

2. The evidence in this case established that S. was in possession of the book, and that her possession continued after she was asked to return items of property belonging to her employer. The evidence also linked the fact of possession to an uncontradicted purpose, being disclosure of certain events recorded in its pages. That disclosure had not occurred at the time S. was searched and the book recovered. Once it was accepted, as it was, that the reason for possession was limited to that purpose, one which could be carried out and the book returned, there was an explanation of the circumstances of its possession, which was consistent with innocence. That explanation was a reasonable one, and not contradicted by any evidence led by the prosecution.

3. It is well established that in a case where there is any reasonable explanation which is consistent with the innocence of the defendant, the court must find the defendant not guilty. This conclusion follows from the obligation to find the charge proved beyond reasonable doubt. Accordingly, the Magistrate erred in law and in fact in finding that because she did not accept that S. did not know that she was required to return the book, she was satisfied that S. intended to keep the book and use it against its owner.

4. The Magistrate reasoned that S. needed to satisfy her that she did not know that the book had to be returned if she was going to avoid the finding that her possession established an intention to keep it permanently. She did not bear that onus. Mere possession could not make that case. Approaching the matter this way the Magistrate fell into error.

5. The Magistrate's reasons did not disclose the grounds upon which the court's conclusion was based. They did not grapple with the legal issues which arose in a circumstantial case and did not deal with competing hypotheses which emerged from the facts. That made them inadequate for their intended purpose. The Magistrate erred in failing to state any or any adequate reasons for finding that S. intended to keep the book and intended to use the book against its owner.

55 Sentencing – three breaches of a Family Violence OrderIn Clark v Harvey MC 55/2018 the defendant committed three breaches of a Family Violence Order and was sentenced by the Magistrate to imprisonment for one month. Upon appeal- HELD: The motion to review was dismissed.1. When considering the Family Violence Act it must be borne in mind that the safety, psychological wellbeing and interests of people affected by family violence are the paramount considerations.

2. In this case the relevant order was a police family violence order, but such orders also demand respect and compliance. Orders will have little value unless they are strictly enforced, and the response to breaches by courts plays an important part in ensuring that the intervention system is as effective in protecting victims as it can be.

3. The breaches committed by C. involved no physical contact or approach, or violence or overt threat. However, the Magistrate was entitled to conclude that the context added significantly to the gravity of the offences. C.'s acts were a deliberate extension of a course of conduct intended to cause mental harm or apprehension or fear. In the circumstances, the calls and the message sent in breach of the order must have been a matter of considerable concern for the complainant. The calls and the message, in combination, signaled to the complainant that she could still not feel safe, because C. was prepared to act despite the intervention of the police, despite the existence of the order, and while he was on bail. Conduct like this from disgruntled partners or former partners to a domestic relationship attracts a strong need for sentences of general and specific deterrence and denunciation.

56 Wearing a Nikab in Court

In The Queen v Chaarani (Ruling 1) MC 56/2018 the wife of an accused sought to wear a nikab in court. A nikab is a veil that completely covers the head and face except for an opening of the eyes.HELD: 1. It is acceptable that the right of religious freedom is engaged and that it is a very important right, which may go to the core of a person’s identity. Likewise, it is acceptable that the right to participate in public life is engaged and that it is an important right.

2. Australia is obviously a multicultural society and religious dress should be accommodated as much as possible, but the right of religious freedom and the right to participate in public life are not absolutes. As s7 of the Charter recognises, these rights may be subject to limitations which can be “demonstrably justified in a free and democratic society based on human dignity, equality and freedom.”

3. Spectators whose faces are uncovered are likely to appreciate that, if they misbehave, it will not be too difficult to establish their identity, even if they manage to get away from the court. Where the faces of spectators are uncovered, the court will have the full benefit of CCTV footage of the public gallery as well as the full benefit of any eye witnesses to the misbehaviour in court. Not only will identity be more readily established but objective proof of any misbehaviour may be available, for example, CCTV footage showing the alleged culprit uttering the offending words.

4. Requiring spectators’ faces to be uncovered is the least restrictive means of upholding court security, bearing in mind that this requirement does not compel any one to attend court and remove their nikab.

5. In summary, for the reasons given, it is a reasonable limitation “demonstrably justified in a free and democratic society based on human dignity, equality and freedom” to require spectators in the public gallery to have their faces uncovered.

57 Bail application – exceptional circumstances needed to be shownIn Re Gloury-Hyde MC 57/2018 the applicant was charged with Sched 1 drug offences and needed to show exceptional circumstances justifying the grant of bail.HELD: Application for bail granted on G-H's own undertaking, with special conditions.1. G-H was not required to show an absence of unacceptable risk, the burden of establishing an unacceptable risk resting with the prosecutor. Any grant of bail must carry some risk. Thus, the court must evaluate the suggested risk in order to determine whether it is an unacceptable risk. Of some importance, the Act recognises that some risks may be rendered acceptable by, for example, the imposition of appropriate conditions of bail.

2. The concept of exceptional circumstances is an elusive one. But, as Beach JA observed in Ceylan [2018] VSC 361; (2018) MC 501, it is well established that exceptional circumstances for the purposes of the Act may, in an appropriate case, consist of a combination of a number of circumstances relating both to the strength of the prosecution case against the applicant and the personal circumstances of the applicant. One matter that has often been regarded as important in this context, is the absence of factors pointing to the applicant presenting an unacceptable risk in any of the ways contemplated by the Act.

3. The right to liberty is of particular importance when the court is faced with a relatively young man such as G-H, possessing his physical, psychological and cognitive attributes. Indeed, the nature and extent of G-H's acquired brain injury (ABI), and its consequences for his functioning, which — when taken with other factors such as the availability of treatment — established exceptional circumstances justifying a grant of bail. Although it might be observed that there was nothing particularly exceptional about an applicant for bail being an addicted polysubstance abuser afflicted by a range of psychological disturbances, G-H's traumatic brain injury — for which he bore no responsibility — with its attendant physical and cognitive limitations, made this an exceptional case.

4. Any risk of G-H offending while on bail can adequately be ameliorated by strict conditions of bail; and in particular, conditions requiring G-H to reside at The Hader Clinic and be subject to the clinic’s treatment regime. It might be thought that making it a condition of G-H's bail that he subject himself to the clinic’s rigorous program somewhat paradoxically constituted a significant infringement of his liberty. Given the conditions that the Supreme Court imposed, however, the restrictions on G-H. were more limited than if he were to be remanded in custody.

5. The application for bail was granted on G-H's own undertaking with special conditions.

58 Whether charge could be amended where complainant gave evidence outside the specified period.In DPP v Jarvis (a Pseudonym) MC 58/2018 the complainant’s evidence alleged conduct commenced in 1994 rather than in 1995. The prosecutor sought leave to amend the dates in the indictment but the Judge refused leave to amend.HELD: Appeal allowed and the Judge's ruling set aside. The Crown was given leave to amend the indictment to alter the commencement date of the specified period for each charge. 1. It is most unusual for the date of an alleged sexual offence — or, in this case, the period within which an offence is alleged to have occurred — to be viewed as an element of the offence rather than as a matter of particulars.

2. There was nothing in the course of conduct provisions which suggested that the ‘specified period’ was intended to be ‘an essential part’ of the offence. Sub-clause (8) makes clear what has to be proved beyond reasonable doubt, namely, that the ‘incidents’ of the offence — in this case, sexual penetration — ‘amount to a course of conduct having regard to their time, place or purpose of commission and any other relevant matter’.

3. It is plain that the specification of the period within which the incidents are alleged to have taken place is a matter of particulars. Amendment of the particulars would, on ordinary principles, be permitted, subject to any necessity for an adjournment (or a discharge of the jury) to enable the accused to respond to the change in particulars.

4. Self-evidently, the power of amendment thus conferred is very wide indeed. No distinction is drawn between amendments which go to the elements of an offence and those which go only to particulars. Subject only to the question of injustice to the accused, the power under s165(1) would appear to extend to amendments of either kind. On that view, the judge had power under s165(1) of the Criminal Procedure Act 2009 to amend the indictment even on his view that the ‘specified period’ was an element of each course of conduct charge.

59 Application for bail – applicant required to show causeIn Re Garou MC 59/2018 the defendant was charged with a significant number of offences and was required to show cause for bail.HELD: Application to grant bail refused.1. It was accepted by both parties that G. had to show cause to be granted bail. This was the case for a number of reasons, including the allegation that he committed an indictable offence whilst on bail for another indictable offence; having been charged with an aggravated burglary; and, having contravened conduct conditions of bail, on a number of occasions.

2. If proven, the allegations against G. would amount to conduct that was persistent, and sometimes flagrant in its nature. The alleged conduct appeared to show little regard for the property or welfare of members of the wider community, and involved disobeying the lawful orders of police, as well as driving offences. Of significant concern were the allegations that G., as a prohibited person, possessed a sawn-off shotgun, as well as ammunition. Similarly concerning were the allegations of burglaries committed in company with others, including an aggravated burglary where a female was present in her home, apparently alone.

3. Apart from the current allegations before the court, G. had a significant and relevant criminal history. That history, combined with the regularity of the alleged offending over the relevant period, provided little confidence that his offending would not continue.

4. Taking all things into account, G. did not show cause why he should be admitted to bail. The question of delay was not a significant factor in this application as it appears that G.’s matters were listed for hearing in late August 2018. Nor have particular weaknesses in the prosecution’s cases been demonstrated that would cause concern that a significant number of the charges will be dismissed.

60 Over three years defendant obtained $30,000 over three years from CentrelinkIn Panella v Wanganeen MC 60/2018 the defendant obtained a financial advantage over three years to which she was not entitled. The Magistrate declined to record a conviction. Upon appeal-HELD: Appeal allowed. Having regard to all of the facts and circumstances, it was appropriate to sentence W. to one year's imprisonment and an order that W. be released forthwith on a recognizance to be of good behaviour pursuant to s20(1)(b) of the Crimes Act 1914 (Cth). The order for full reparation remained in force.

61 Costs – whether plaintiff’s counsel liable for costsIn Brott v FGD Pty Ltd & Ors (No 2) an application was made to restrain the defendant’s counsel and the plaintiff’s counsel was sought to pay the defendants costs.

HELD: 1. There was nothing to suggest that Mr Goldblatt’s prior dealings with B., which ceased 14 years ago, would have disadvantaged B. in any way in the course of this application.

2. Given that this proceeding was effectively part-heard, the balance of convenience overwhelmingly told against the granting of the application to restrain Mr Goldblatt from continuing to act for the defendants. Regardless of the outcome of the costs application, in the absence of any appeal, this proceeding will be at an end.

3. In relation to the defendants application that any costs payable to them be made by B.'s solicitor Mr Efron, the defendants submitted ‘an order of costs against a practitioner will be appropriate where costs have been wasted by their failure to act with reasonable competence and expedition or they have exhibited a serious dereliction of duty, serious misconduct or gross negligence.’

4. The mere fact that litigation is resolved adversely to a party does not mean that costs should be ordered against the legal practitioner who provided legal services to that party.

5. The applicable principles governing the applications concerning costs, can be summarised as follows:

(a) the default position is that costs follow the event, in the absence of special circumstances; (b) an established ground for the award of indemnity costs (here, confirmed by statute) is an unsuccessful party’s unreasonable refusal to accept a settlement offer; (c) a breach by a party of the overarching obligations which causes the other party to incur unnecessary costs and inconvenience may be a basis for an award of indemnity costs against the party in breach (or its legal representatives); and (d) while the Court must exercise caution in the exercise of the wasted costs jurisdiction, there may be special circumstances which warrant the making of a costs order against a party’s legal practitioner.

6. Applying the principles above to the current applications,

(a) there were no special circumstances which warranted a departure from the usual position that the defendants ought have their costs of the proceeding; (b) it was not unreasonable for the plaintiff to fail to accept the settlement offer at the time it was made; (c) while the conduct of the plaintiff in failing to comply with the orders made by John Dixon J on 2 March 2018 was unexplained, and egregious, there was no evidence that the defendants incurred any additional costs by reason of the plaintiff’s conduct; and (d) the matters relied upon by the defendant did not support an award of costs against Mr Efron.

62 Bail application – applicant had prima facie entitlement to bailIn Re Guirguis MC 62/2018 the defendant faced charges of rape, sexual assault and making threat to kill. He had a prima facie entitlement to bail.HELD: Application for grant of bail refused.1. The CRAF assessment takes place without any benefit that might be achieved by an interview with the alleged offender. The purpose of the CRAF assessment appears focussed towards providing a fast and presumptive indication about possible or likely risk factors regarding the use of future violence by an assessment subject. As such, it appears to be a very useful and important screening tool. In applications such as the present one, however, a cautious approach should be taken in forming firm conclusions regarding risk factors based on the CRAF assessment. There are limitations on the ability of the present curial process to test the veracity and weight of the information used as source material for the CRAF assessment.

2. On the other hand, the HCR-20 is an apparently well-recognised and accepted risk assessment tool which involves an interview of an alleged offender by a properly qualified and trained professional, applying expertise, skill and experience to the task. If applied properly and conscientiously by a qualified psychologist, it seems more likely to provide a reliable assessment than the CRAF assessment, and is likely to be able to be acted upon with a higher degree of confidence. The expert can be tested as to his or her expert opinions formed after having applied the assessment tool. The HCR-20 assessment appears to perform a different type of role to the CRAF assessment.

3. The allegations made against G. were serious and involved two separate victims, with a third complainant who alleged being told serious threats. The allegations of sexual offending

were not only very serious, but involved elements of jealousy, anger, violence, and a high degree of degrading and disturbing conduct against two women with whom G. had long-standing personal relationships.

4. In all of the circumstances, the Court was not satisfied that there should be a grant of bail in this matter. The respondent’s argument that there was an unacceptable risk that G. may commit further offences on bail and was a risk to the safety of his alleged victims and children. The conditions proposed by G. that might attach to a grant of bail were considered, but the Court was not satisfied that they were such that the risk was reduced to an acceptable level.

5. Accordingly, G's application for the grant of bail was refused.63 Appeal against sentence of imprisonment – ill-health involved

In Smith v The Queen MC 63/2018 the defendant was imprisoned on a charge of conspiracy and on appeal said that he had physical illness that was a relevant mitigating factor.HELD: Appeal dismissed.1. In relation to the appeal that the sentence imposed was manifestly excessive, taking into account all of the mitigating factors, including S.'s chronic lung condition, the sentence imposed of 3 years’ imprisonment with a non-parole period of 2 years was clearly within the range of sentences open to the sentencing judge. S.'s involvement in the highly organised and sophisticated fraudulent scheme fully warranted the sentence that was imposed.

2. The lung condition of S. was a matter relied upon in mitigation, and in the course of the plea hearing the judge said that he accepted that it was a matter that he ‘must take into account’.

3. The relevant issue was not whether imprisonment would make the ill health a greater burden but whether the ill health would make imprisonment a greater burden.

4. The weight to be given to ill health was, like all mitigating factors, ‘another matter’, observing that in some cases they might be of great consequence and in others they might make no difference when all relevant circumstances are taken into account.

5. The increased burden of imprisonment as a result of S.'s chronic lung condition was a material mitigating factor. The sentencing judge said as much himself in the course of the plea. Is it to be assumed, or concluded, that because he did not expressly refer to that factor, in terms, in the course of dealing with the many issues he was required to address in the sentencing reasons, that it was a matter which he had overlooked or failed to give proper weight? In the circumstances of this case, the Court of Appeal did not think so.

6. The sentencing judge did not in fact overlook, or fail to give proper weight, to this consideration. He expressed his acceptance of it as a mitigating factor in the course of the plea and he set out the relevant evidence in his reasons in some detail. A markedly different sentence would not have followed had S.'s health been taken into account. Indeed, in terms of s281 of the Criminal Procedure Act 2009, even if the Court of Appeal was satisfied that there had been an error in the sentence first imposed, the Court was not satisfied that a different sentence should have been imposed.

64 Sentencing – breach of suspended sentenceIn Butcher v Lyons MC 54/2018, the defendant was sentenced to imprisonment plus another sentence for activation of a suspended sentence. Upon appeal-HELD: B. was sentenced to 28 days' imprisonment for the driving offence and 30 days' imprisonment for the charge of driving whilst disqualified such sentence suspended for two years and that he perform 70 hours of community service work. No order made in respect of the suspended sentence.1. Exercising the sentencing discretion correctly, required the Magistrate to consider a number of things: the nature and circumstances of the offending for which B. was being sentenced; past responses to sentencing for these types of offences; past responses to sentencing more generally; an understanding of the circumstances which led to re-offending (making defensible, or not, a conclusion that a sentencing option was not achieving its purpose); the time elapsed since prior relevant offending; and evidence of current circumstances and prospects. All of this informed the instinctive synthesis undertaken in sentencing.

2. There was enough in the material before the court, to require not just a careful consideration of suspending some or all of the term of imprisonment but to require that course to be taken. Based upon the sentencing options cited in the presentence report, for

which options B. had been assessed as suitable; and having regard to the time elapsed since the commission of prior driving matters, which sustain confidence in the efficacy of a suspended sentence, it was decided that on a proper application of sentencing principles it was not open to the magistrate not to suspend at least some of the custodial portion of the sentence he imposed. That failure amounted to a material error resulting in a sentence which was "unreasonable or plainly unjust" in the sense referred to in House v The King [1936] HCA 40; (1936) 55 CLR 499.

3. B. had desisted from any further breaches of the family violence orders and it evidenced the fact that the suspended sentence was having its desired effect in terms of controlling his behaviour and assisting his rehabilitation. The magistrate gave no weight to this matter. Apart from referring in a general way to the relevant considerations on an application such as this, it could not be discerned from the court's reasons an application of this consideration. It was in error not to do so.

4. It was not open to conclude that B. had not made significant progress towards his rehabilitation. That was because the same triggers which led to the offending continued to operate upon him, and he resisted repeating the behaviour. There was no better evidence of progress towards rehabilitation than that. The evidence before the court from the community corrections officer reinforced that conclusion, and from that material it could be seen that B. had begun a course with Relationships Australia and had begun engagement with a psychologist. That evidenced insight into his behaviour. He had employment prospects.

5. Having regard to those matters, the magistrate acting reasonably could not have concluded that an order activating the sentence was anything but unjust.

6. B. was sentenced to 30 days' imprisonment. Because of his circumstances, his apparent insights into his behaviour evidenced by his engaging with professional help, and his good prospects, it was decided that his rehabilitation and the community interest could be met whilst suspending the operation of that sentence on condition that B. commit no offences for which a term of imprisonment may be imposed, for two years and that he perform 70 hours of community service work. Further order that B. to be subject to probation for a period of twelve months and disqualified from holding or obtaining a driver's licence for a period of 6 months cumulative to the period of suspension imposed on the other charge.

65 Assault charge – adjournment application refusedIn SA v Badenhorst MC 54/2018 the defendant who was employed as a teacher was convicted of an assault offence. Upon appeal-HELD: Appeal allowed and the conviction set aside. A good behaviour order without conviction for 12 months was imposed.1. It is true, as the magistrate pointed out, that this was a domestic violence offence, and that was something that needed to be considered. However, there was no rule of law to the effect that a domestic violence offence cannot be the subject of a non-conviction order. Certainly, the fact that it is a domestic violence offence fed into the consideration of the seriousness of the offence. But a non-conviction order may still be made depending upon the cogency of the other matters that are referred to in the section.

2. The Crimes (Sentencing) Act 2005 (ACT) provides mandatory considerations for the Court to consider before making a non-conviction order. However, those are not the only considerations that the Court may consider. The Court may consider other relevant considerations. Such a consideration on this occasion was the fact that SA would lose her employment if a conviction was recorded. That was a very significant matter because that would result in an outcome which was completely out of keeping with the seriousness of the offence.

3. The magistrate made a reference to the necessity for any sentence imposed to have an element relating to specific deterrence. However, there was no requirement demonstrated for specific deterrence to play a part in sentencing with respect to this matter. General deterrence is a relevant sentencing consideration. But balancing all of the matters referred to, a non-conviction order with a good behaviour order under s13 of the Crimes (Sentencing) Act was imposed.

4. Accordingly, the conviction imposed by the magistrate was set aside, and without recording a conviction there was made a good behaviour order for a period of 12 months.

66 Procedural fairness – disputed judge’s procedural ruling – appeal against Supreme Court judge’s rulingIn Doughty-Cowell v Kyriazis and Anor MC 66/2018 the litigant disputed County Court judge’s

ruling and a Supreme Court judge quashed the order. Upon appeal-HELD: Appeal allowed, the orders of Bell J set aside and K.'s proceeding for judicial review dismissed.1. Bell J concluded that both of the rules of natural justice had been breached. First, his Honour held that K. had been denied a fair hearing because the judge had not given him the assistance to which, as a self-represented litigant, he was entitled. Secondly, the judge was ‘ostensibly biased’ against K. In Bell J's view, a fair-minded observer would have reasonably concluded that the County Court Judge might not have impartially heard and determined K.'s proceeding.

2. The calling on of K.'s subpoenas occurred over approximately 15 pages of the transcript of the hearing before the County Court Judge. During this time, K. was obstructive, rude and disrespectful to his Honour. The judge remained calm and patient throughout, identifying each subpoena and gathering together the various documents produced pursuant to those subpoenas.

3. As to K.'s behaviour before the County Court Judge, Bell J said that he acknowledged with regret and disapproval that, to varying degrees and on many occasions, K. was disrespectful, argumentative, angry, uncooperative and perhaps contemptuous in the face of the Court (as were K.'s supporters who were present at the hearing).

4. The County Court Judge provided K. with all of the assistance he could reasonably expect. Notwithstanding K.'s continued rude and disrespectful behaviour to the judge, the judge maintained a calm (if, at times, frustrated and annoyed) demeanour and continued throughout the hearing to attempt to engage with K. and inform him about the process and of his options from time to time.

5. Bell J’s conclusion that K. was denied a fair hearing was set aside. Moreover, the other bases upon which counsel for K. sought to maintain Bell J’s conclusion was rejected.

6. What occurred before the County Court Judge was nothing short of extraordinary. The adversarial tone had been set by K. in his pre-hearing letter. What should have been a straightforward re-hearing of a Magistrates’ Court prosecution was turned by K., and his supporters, into an occasion for challenging the authority of the Court, through disputation over minor matters, consistent refusal to accept the judge’s rulings and directions, and an inexplicable refusal to participate in the substantive hearing.

7. The question of bias has to be considered in the light of the conduct of the entire hearing. With great respect to the trial judge Bell J, there was no basis for concluding that the County Court Judge showed ostensible bias. On the contrary, such impatience and frustration as he expressed was mild by comparison with the aggression and provocation with which he was confronted.

8. Far from thinking that the County Court Judge might not have brought an impartial mind to the resolution of K.'s case, a fair-minded lay observer would have concluded that a busy judge was merely vexed by a rude and disrespectful litigant. Even if it might be thought that at some point in the hearing the Judge had been discourteous, impatient or even rude, it was important to distinguish conduct on the part of a judge which might satisfy that description but which did not demonstrate bias.

9. Accordingly, Bell J’s conclusion that K. had established that the County Court Judge was ostensibly biased was set aside.

67 Procedural fairness – appeal by Supreme Court judge allowedIn Roberts v Harkness & Magistrates’ Court of Victoria MC 67/2018 a magistrate found charges of unlicensed driving proved and was later found by a Supreme Court judge to have breached the rules of natural justice. Upon appeal-HELD: Appeal allowed and orders made by Bell J. set aside and order that the appeal to the Supreme Court be dismissed. 1. It was concluded that there was no breach of natural justice. H. was given a full opportunity, in advance of the hearing, to set out in writing any argument or submission on which he wished to rely. As already noted, he took up that opportunity and set out — apparently comprehensively — the essential elements of his objection to jurisdiction. Especially given that the objection to jurisdiction was only a preliminary point, it was perfectly appropriate for the Magistrates’ Court to have directed the filing of argument in advance. That is a procedure routinely adopted by courts. It serves the interests of justice, by giving parties time to formulate their arguments in writing and by enabling judicial officers to prepare for

hearings by reading the written arguments before going to court.

2. It is an essential requirement of a fair hearing that each party be given a ‘reasonable opportunity’ of presenting its case, whether in writing, or orally, or both. This will ordinarily include being informed of the case to be advanced by the opposing party, and having an opportunity to respond.

3. Axiomatically, what is ‘reasonable’ for this purpose will depend on the circumstances of the case. Matters to be taken into account in determining the practical content of fairness in the particular case will include

• the nature of the decision to be made;• the nature and complexity of the issues in dispute;• the nature and complexity of the submissions which the party wishes to advance;• the significance to that party of an adverse decision (‘what is at stake’); and• the competing demands on the time and resources of the court or tribunal.

4. The framework of analysis does not change in any significant respect where one of the parties is unrepresented. The question to be asked — both at first instance and on judicial review — remains the same: what is (or was) required to give the unrepresented person a reasonable opportunity to advance his/her own case and to be informed of and respond to the opposing case?

5. The one key difference, however, is that the Court will first have to assess the capability of the unrepresented person to formulate, and communicate, the case which he/she wishes to present. The assumptions as to capability on which the Court proceeds where a party is represented do not, of course, apply.

6. There was no denial of procedural fairness. The Magistrate was fully entitled to deal with the objection to jurisdiction on the basis of the written documents which H. had filed in advance, namely, the 2014 notice and the 2016 statement. The direction that H. file his arguments in advance was entirely appropriate. It was a procedure particularly well-suited to an unrepresented accused, who might have difficulty advancing argument orally.

7. The management of cases involving unrepresented litigants is a source of continuing difficulty for judicial officers. They are required to balance the interests of justice in the particular case with the competing public interest in the efficient use of public resources and in access to justice for other litigants waiting to have their cases heard. What is required is a combination of patience and judgment and an ability to discriminate between those cases where the interests of justice demand a prolongation or adjournment of the hearing — so that the unrepresented litigant’s case can be fairly presented — and those where the interests of justice call for expeditious disposal. So far as the objection to jurisdiction was concerned, this was a case in the latter category, as the Magistrate recognised.

8. The Magistrate was quite correct to describe H.'s arguments as grounded in religious precepts. As is apparent from the various extracts set out, H.'s lengthy written submissions were grounded in his assertions about the place of Almighty God as the source of his rights, in particular his right to travel. It was those repeated references which understandably made clear to the Magistrate that H.s objection to jurisdiction was based on a mixture of personal philosophy and religious belief, and was completely lacking in legal foundation.

68 Building works beyond scope of planning permitsIn Pegasus Building Pty Ltd and Laghaien v Curlis MC 68/2018 building and planning permits were accessed to see whether they authorised works. A Magistrate found the charges proved. Upon appeal-HELD: Appeals dismissed.1. The Building Permit did not grant permission to remove the Roof. There was no broad permission conferred for the project at large. It was specific permission tied to specific plans.

2. In relation to the planning regime, it was submitted that the land was within a heritage overlay under the Yarra Planning Scheme and, accordingly, a permit was required to demolish or remove a part of a building.

3. A permit is a statutory regulatory instrument, and as such, should be construed in accordance with the usual rules of statutory construction. This process of construction may sometimes require departure from the natural or ordinary meaning of a provision, if the alternative is absurdity or inconsistency with the purpose of the instrument.

4. One respect in which permits differ from other statutory instruments is that they are to be construed to achieve practical results, and not read as documents drafted with legal expertise.

5. The Magistrate did not fall into error by having regard to considerations of reasonable necessity. The question for determination, in the absence of specific permission to remove the Roof, was whether it reasonably necessary for the builders to remove the roof? It was not.

6. It could not be said, based on the authorities, that the removal of the roof was necessary. It may indeed have been expedient, but that was insufficient. There were other feasible and available options that the builders could have pursued which would have resulted in the appropriate permissions being put in place. The fact that the builders chose not to go down this route should not have been visited upon the respondent in the sense that it should not have deprived the respondent of the benefit of the orders of the Magistrate.

69 Whether overall sentence breached the limb of totality principleIn Dixon v McNevin MC 69/2018 a sentence of 3 years was imposed for several offences. Upon appeal-HELD: Leave to appeal granted. The overall sentence imposed breached the limb of the totality principle and was reduced.1. The issue that the appellate court must determine is whether it was open to the Magistrate at first instance to decide that the service of the suspended sentence was unjust.

2. A sentence may be manifestly excessive because the wrong type of sentence has been imposed or because the length of the term of imprisonment is manifestly long. D. contended that the length of the term of imprisonment was manifestly excessive. To determine whether a sentence is excessive involves considering the maximum sentence imposed by law for the crime, the standard of sentencing customarily observed with respect to the offence, the place that the criminal conduct occupies on a scale of seriousness of crimes of the kind in question and the personal circumstances of the offender.

3. Pursuant to s6(4) of the Sentencing Act a court must not impose a sentence of imprisonment on an offender unless it decides that the seriousness of the offence is such that only imprisonment can be justified, or, if the protection of the community requires it. Further, s6(1) of the Sentencing Act requires that a sentence imposed on an offender must be commensurate with the seriousness of the offence. By s6(2) of the Sentencing Act the seriousness of the offence must be determined by taking into account the statutory penalty for the offence, the circumstances of the commission of the offence, including any aggravating and mitigating factors and the vulnerability of any victim of the offence.

4. There is no identifiable tariff for the offence of reckless driving. The statutory scheme is intended to accommodate the wide variety of conduct, involving varying degrees of culpability, which can constitute the offence of reckless driving. Whilst the decisions provide guidance to courts who must seek to achieve broad consistency in sentencing, this type of offence may be committed in a wide variety of circumstances and with much disparity in the particular offender's antecedents. In short, previous decisions provide guidance as to what may constitute a sound exercise of discretion in a particular case, but they do not determine what the appropriate sentence should be.

5. The length of the term of imprisonment imposed for reckless driving of 14 months was not manifestly excessive. The term that was imposed was most understandable in light of the seriousness of the offending and D.'s antecedents.

6. The sentence to be imposed must reflect the seriousness of the offending. The question though was whether the overall sentence of 3 years' imprisonment was disproportionate to the criminality involved in the offending. The individual sentences imposed were within discretion. However, the overall term of imprisonment of 3 years did breach the first limb of the totality principle. In reaching that conclusion the Court considered all relevant factors that bore on the determination of the appropriate sentence. A lesser total effective sentence of 5 months' imprisonment was imposed.

70 Bail application – exceptional circumstance – bail refusedIn Re McNally MC 70/2018 McN was charged with many drug-related offences and other offences and the Court was required to refuse bail unless exceptional circumstances existed. HELD: Application for a grant of bail refused.1. McN. committed the alleged offences whilst on bail for a large number of offences of a similar nature in Queensland. He breached the conditions of his bail for the Queensland

offences by residing at addresses other than the nominated address in Altona North. The applicant did not have strong ties to the Victorian community, as his only ties were those involved in drug trafficking, and his family and associates were all interstate.

2. As to the strength of the prosecution case and the seriousness of the allegations, a Magistrate will be best placed to make this assessment at the conclusion of the committal. It appeared the first charge of commercial trafficking may fall away at the committal. However, the prosecution case could not be said to be a weak one. When looked at in its entirety, the case was not limited to a few allegations of trafficking, but was a quintessential circumstantial case. It appeared to indicate a well-organised syndicate and sophisticated drug manufacturing operation.

3. The allegations were unquestionably very serious, in regards to the scale, degree of organisation and sophistication of the set-up and syndicate. The major allegation of commercial trafficking was a Schedule One offence. The alleged offending involved the importation of chemicals from overseas, and the establishment of a sophisticated manufacturing process.

4. McN. appeared to be unemployed, with few connections to Victoria. He put forward a proposal to attend a residential drug treatment facility, as well as offering a substantial surety. These two proposals came nowhere near amounting to exceptional circumstances, either individually, or in combination with all other relevant factors. Further, there was minimal evidence to demonstrate that McN. was in need of the type of drug treatment the clinic offered. On the prosecution case, McN. was in the business of manufacturing and trafficking drugs. On the evidence, McN. did not suffer from the kind of affliction that warranted the proposed treatment.

5. Having taken into account all the circumstances, exceptional circumstances had not been established by McN. and accordingly the application for a grant of bail was refused.

71 Appeal against speeding offence sentenceIn Ali v Allan and County Court of Victoria MC 71/2018, a speeding offence was found proved in the Magistrates’ Court and the defendant unsuccessfully appealed against it to the County Court.HELD: Proceeding dismissed.1. The proceeding sought judicial review of the County Court orders. In order to grant judicial review remedies, the Supreme Court Judge on appeal would have to be satisfied either that the County Court Judge made a significant legal error that affected the decision, being a jurisdictional error or an error of law on the face of the record, or that BA. did not receive a fair hearing.

2. When there is conflicting evidence, as very often happens in a court hearing, a Judge must decide which evidence he or she accepts. In this case the County Court Judge accepted the evidence of the police officer. It could not be said that the fact that the police officer conceded that there might be very rare cases where the device would not work properly meant that the Judge could not accept his evidence. In addition, the police officer’s evidence also was that on such occasions the device would display an error message rather than a reading.

3. So, as often occurs, the case involved conflicting evidence from the driver, in this case BA., and evidence from the police officer of the reading on his speed detection device. The County Court Judge preferred the evidence of the police officer, and once he did so, there was sufficient evidence to prove the charge beyond reasonable doubt. There was no error entitling the Supreme Court to grant judicial review remedies.

4. After reading the transcript, the Supreme Court Judge was not satisfied that BA. did not receive a fair hearing. The County Court Judge had to decide which evidence to accept, after he had asked a number of questions, some of which might have assisted BA.'s case, but he ultimately accepted the police officer's evidence. The Supreme Court Judge was not satisfied that there was any unfair hearing.

5. As often occurs in speeding cases, the County Court Judge gave greater weight to the evidence of the police officer who was using a speed detection device.

6. Accordingly, BA. did not establish any judicially reviewable error by the County Court Judge.

72 Pseudonyms – open justice principle – exceptions

In Martin v The State of Victoria MC 72/2018 an application was made for pseudonym for the plaintiff and a non-party.HELD: Application granted and orders made as requested. 1. In ABC v D1 [2007] VSC 480, J Forrest J distilled the principles in applications of this kind. Briefly stated, they are that the principal and fundamental rule is that judicial proceedings should take place openly, however in certain circumstances the administration of justice may require qualification of that general rule. A pseudonym order should only be made where it is necessary to do so to prevent prejudice to the administration of justice. The individual circumstances of the applicant for such an order may be taken into account. In cases involving sexual offences it may be appropriate to suppress not only the name of the plaintiff or alleged victim of those offences, but of the defendant or alleged perpetrator. A mere belief that such an order is necessary is not sufficient, and cogent proof of the necessity of making such an order is required, however ‘in certain cases a court can, in a practical sense, act on its own experience and draw appropriate inferences’.

2. The plaintiff’s claims involved allegations of assault and rape and it was in the interests of justice that the identities of the plaintiff and the alleged perpetrator of the offences against her were suppressed. A further reason to do so was to protect the interests of the plaintiff’s two young children, the alleged perpetrator being their father.

3. The extent of interference with the principle of open justice occasioned by this order would be minimal.

73 Bail application -applicant intellectually disabledIn Hall v Pangemanan MC 73/2018 the applicant was charged with being drunk in a public place and breaching a condition of bail. The applicant was born with a genetic developmental disorder and he resided in Disability Accommodation Services. Upon his application for bail-HELD: Application granted with conditions. 1. The (extremely) unusual thing about this case was that, despite the very modest level of charges he faced, H. was in what is called an ‘exceptional circumstances’ position with respect to bail – which means that bail must be refused unless H. demonstrates exceptional circumstances exist that justify the grant of bail. This is the highest threshold for granting bail that the law imposes in this State. It is the same threshold that applies to a person charged with murder or a terrorism offence or other very serious offences.

2. H. has been diagnosed with Smith-Magenis syndrome and has a mild to moderate intellectual disability. These factors make him vulnerable in the confines of a custodial environment. As a result of his particular afflictions and conditions, a custodial environment would be more onerous on H. than the usual prisoner or remandee.

3. The prosecution took the position that bail should not be opposed and that there should be no conditions other than the static residential condition.

4. Thus, there were exceptional circumstances that justified a grant of bail. While there was a substantial risk that, if bailed, H. would commit a further offence or offences of public drunkenness while on bail, that was not an unacceptable risk in all of the circumstances.

74 Bail application – prima facie entitlement to bailIn Re Menna MC 74/2018 the defendant was charged with several offences but had a prima facie entitlement to bail. A Magistrate refused bail. Upon appeal-HELD: Application granted with strong conditions. 1. The offending alleged against M. was serious as it involved a threat to inflict serious injury on a person with whom he had been in a relationship, and the possession of a trafficable quantity of firearms and ammunition for those weapons. Despite the inherent seriousness of these allegations, pursuant to s4 of the Bail Act 1977, M. was prima facie entitled to bail.

2. No evidence or submissions were advanced to suggest M.'s possession of the firearms was for a purpose of any form of commercial movement. No conclusion could be made beyond that M. was jointly involved in any activity other than to use a firearm for ‘recreational purposes’. Further, no evidence was put to support the conclusion that the weapons were associated with other forms of criminal activity involving violence that occurred or were planned to occur that night.

3. Taking into account all the circumstances, strong conditions of bail would be imposed that mitigated the risks asserted by the Prosecutor. If granted bail, M. would live in stable accommodation, and there was a series of referrals and arrangements in place for him to

obtain a mental health plan. And this view was fortified by the results of the CISP assessment.75 Application for bail in Children’s Court refused

In Re C T MC 75/2018, the defendant was 16 years old and had been charged with several offences of a serious nature. Bail had been refused by the Magistrate. Upon appeal-HELD: Application failed to establish exceptional circumstances for the grant of bail. 1. CT. fell into the exceptional circumstances category. He was alleged to have committed offences when he was already subject to a number of grants of bail by reason of a sequence of indictable charges laid by the police informants. Relevantly, four informants each charged CT. with the specific offence of committing an indictable offence whilst on bail. This was an offence that fell within item (1)(a) of Schedule 2 of the Bail Act 1977 ('Act').

2. Accordingly, CT. had been charged with a series of Schedule 2 offences that were alleged to have been committed while he was on bail for another indictable offence. These offences fell under Schedule 1 pursuant to item (3)(a) of Schedule 1 of the Act, and CT. thus fell into the exceptional circumstances category for the purposes of bail.

3. The Act does not define what may amount to exceptional circumstances. It is well established that, ‘in order to be exceptional, the circumstances relied on must be such as to take the case out of the normal, so as to justify the admission of the applicant to bail’. It has been observed that ‘the hurdle confronted by an applicant in establishing exceptional circumstances ‘is a high one’. That having been said, it is not an impossible standard to reach.

4. It is widely accepted that exceptional circumstances may, in an appropriate case, be established through a combination of factors, including matters involving the nature of the Crown case, as well as personal factors pertaining to the applicant. Frequently, matters involving the nature of the Crown case involve issues concerning the strength or weakness of the case; undue delay in bringing the matter to trial; or, unusual features of the alleged offending, or the investigation, which might either solely, or in combination, make the circumstances exceptional.

5. In relation to the question of delay, taking into account the fact that CT. is a child, and having regard to the matters set out in s3C of the Act, in all the circumstances, the delay was not of undue length, such as to be a significant factor in resolving this application. Nor was it inordinate nor unusual in CT.'s case.

6. Taking into account the matters listed under s3B of the Act, and in particular the likely sentence should CT. be found guilty of the offence charged, it is not convincing that the time he will serve on pre-trial custody will exceed that which he would receive after a finding of guilt.

7. In determining whether exceptional circumstances were made out, the Court was obliged to have regard to surrounding circumstances. Section 3AAA(a)–(d) of the Act are of particular relevance to this assessment. Sub-section (d) obliges the Court to take into account the extent to which CT. had complied with any earlier grant of bail. While acknowledging the allegations were unproven, the bail history of CT. suggested that he had defied court bail orders on multiple occasions this year. The extent of this allegation gave the Court little confidence that CT. would comply with a bail order from the Court.

8. The Court was not of the opinion that stringent bail conditions would alleviate the risk that CT. would offend whilst on bail and be a danger to members of the community. CT. was regarded as an unacceptable risk of further offending.

9. Accordingly, as a result of all the matters taken into account, the Court was not satisfied that CT. had established exceptional circumstances such that he should be granted bail.