Appellant v Respondent

1 On the 26 October 2018, the appellant was convicted by the Magistrates' Court of Victoria of one charge of committing an indecent act with a child under 16, contrary to s 47(1) of the Crimes Act 1958 (Vic).[1] The appellant was sentenced to a community corrections order for 18 months, with conditions that he perform 200 hours of community work and undergo assessment, treatment and rehabilitation as directed.

2 The appellant challenges the final orders of the magistrate, pursuant to section 272(1) of the Criminal Procedure Act 2009 (Vic), on four grounds:

(a) the magistrate erred in law by failing to direct herself as required, either adequately or at all (ground one);

(b) the magistrate erred in law by failing to give adequate reasons for her decision (ground two);

(c) the magistrate erred in law by denying the appellant procedural fairness when refusing to allow his counsel to seek adequate reasons for her decision (ground three); and

(d) the findings of the magistrate were unsafe and unsatisfactory (ground four).

3 The victim was a friend of the appellant's daughter. The prosecution's case was that the victim slept over at the appellant's house on the evening of 4 to 5 March 2017, with the two girls sleeping in a makeshift bed in a room at the rear of the house. In the early hours of the morning, the appellant entered the room, and, under the pretence of covering the girls, indecently assaulted the victim by placing his hand between her legs and touching her once on her perineum. The victim, who was awake, sat up to look the appellant in the eye, whereupon he left the room. His daughter woke at that time. The victim reported to the daughter what had occurred. Later that day, the victim reported to a friend by Facebook Messenger what had occurred. Then, later that afternoon, she recounted to her mother what had occurred. The next day, she recounted to the appellant's estranged wife what had occurred.

4 The victim subsequently reported the assault to police and on 30 March 2017 participated in a video and audio recording of evidence procedure (VARE). The victim, the daughter and the Facebook friend were each under 18 at the time of the alleged offence and at the time of testifying.

5 At the conclusion of the evidence, the magistrate invited submissions of law but not submissions of fact.

6 The appellant submitted that the Jury Directions Act 2015 (Vic) makes it explicit that a magistrate must canvas certain matters as a trial judge would with a jury and identified those portions of the 'Victorian Criminal Charge Book' published by the Judicial College of Victoria (Charge Book) that related to the relevant matters, with appropriate cross‑referencing to the Jury Directions Act.

7 Counsel referred the magistrate to Part 4.3.1 of the Charge Book and the directions under the heading 'Character Evidence', which he cross referenced to s 110 of the Evidence Act 2008 (Vic).

8 Counsel drew the magistrate's attention to the directions in respect of 'Previous Representation' set out in Part 4.13.[2] Counsel emphasised the Charge Book's content on previous representations and referred to four directions dealing with potential unreliability of hearsay evidence, prior inconsistent statements, prior consistent statement, and complaint evidence. Counsel then referred the magistrate to s 32 of the Jury Directions Act. He cross‑referenced to s 103 of the Evidence Act when noting the direction in respect of prior inconsistent statements, and cross‑referenced s 108 of the Evidence Act in respect of prior consistent statements, noting that 'such matters will be determined by the factual findings made' by the magistrate in the course of her deliberations. Counsel also cross‑referenced to s 44B and following of the Jury Directions Act in respect of complaint evidence.

9 Counsel next referred the magistrate to the direction dealing with 'Word against Word' cases,[3] specifically noting the express reference to a Liberato direction.[4] Counsel also referred to the specific direction articulated in the Charge Book dealing with differences in a complainant's account,[5] cross‑referencing that direction to ss 54A to 54D of the Jury Directions Act.

10 Counsel then made brief reference to the general directions found in the Charge Book, observing that the magistrate had referred to some of the relevant principles appropriately during the hearing. He made specific reference to the obligation of the finder of fact to decide guilt solely on the evidence, the directions in respect of assessing witnesses and the directions in respect of the burden of proof, cross‑referencing those directions to s 63 of the Jury Directions Act.

11 Counsel stated that these references were the matters of law that he asked the magistrate to have at the forefront of her mind as she contemplated the evidence. In making these submissions, he did not identify the evidence, either by reference to the identity of the relevant witness or to the substance of relevant evidence, or to any particular issue framed in terms of the facts of the appellant's alleged offending.

12 The prosecutor, in his submission to the magistrate, affirmed the reference to ss 45 to 54 of the Jury Directions Act as provisions particularly relevant in respect of sexual offences. The prosecutor further submitted that the weight to be placed on the evidence contained in the record of interview was constrained, as such material had not been tested under oath or in cross‑examination. The appellant's counsel submitted, contradicting this submission, that the magistrate had, in effect, been invited to conclude that the appellant was guilty from the fact that he had not given evidence. The magistrate interjected that she did not agree that that was the prosecutor's submission, which she reframed to be that she needed to be mindful of what weight to place upon the information contained in the record of interview, given that it had not been tested by cross‑examination. The magistrate considered the prosecutor's submission to be reasonable and one that fell well within the realms of the Jury Directions Act.

13 The magistrate clarified that the appellant had every right to remain silent. He had no obligation whatsoever to prove or disprove anything, and that the onus and responsibility of proving all of the elements of the offence beyond any doubt lay with the prosecution. The magistrate agreed with the appellant's counsel that she must very carefully approach how she treated evidence that was qualitatively different from evidence given under oath and subject to cross‑examination.

14 The magistrate reserved her decision for a week.

15 When announcing her reasons, the magistrate first identified the nature of the offence and the manner in which the trial had proceeded. She next identified the witnesses from whom she had taken evidence and noted that many of the facts surrounding what occurred were not actually in dispute. She then recited the facts that were not in dispute. She made particular reference to the victim's interview with the police and to the appellant's explanation of his actions in his interview.

16 Next, the magistrate recited the evidence of the victim's complaints to her Facebook friend, her mother and to the estranged wife of the appellant. The magistrate noted there were several discrepancies between the victim's accounts and those of the witnesses referred to, and she discussed those discrepancies.

17 The magistrate then observed that the court had received little relevant evidence on which to consider the appellant's defence. The magistrate referred to positive character evidence about the appellant given by his estranged wife. The magistrate noted that the appellant had been fully cooperative with the police and categorically denied any wrongdoing during his interview. He had no prior criminal history. The magistrate specifically referred to one of the appellant's responses in his record of interview, where he described that all he could remember doing was picking up the bed covers and reaching over to lay them down and pull them around the victim. He did not recall touching the victim, saying that he didn't bump the kids to wake them and didn't lean on them.

18 The magistrate then stated that she had considered all of the evidence very carefully and had taken considerable time to do so. She said that was conscious that the appellant, who neither gave evidence nor called any on his behalf, was under no obligation to do so. The charge, she observed, was a serious one with very serious repercussions. With all of that in mind, she then expressed her findings of fact. Those findings included the following:

(4) Emboldened by the sight of [victim] being partially exposed by virtue of her position on the bed and the light clothing that she was wearing, [the appellant] began, as was described by [victim], to try and remove any covers from her.

19 The magistrate found that the appellant's daughter, who woke momentarily and asked what he was doing, promptly fell back asleep but the appellant remained in the room. The magistrate's findings continued:

(6) What followed has been accurately and truthfully described by [the victim]. [The appellant] attempted to remove the covers from [victim] determinably and slowly so as not to wake her and for the sole purpose of touching her indecently.

(7) [Victim] was a compelling witness. Her immediate disclosures to [her Facebook friend, the daughter, later to her mother] only served to enhance my view of her truthfulness.

(8) I find it would be impossible for [victim's] version to have been concocted in all of the circumstances and despite inconsistencies to which I have referred. Those inconsistencies in my view occurred through no fault of [victim] but rather through the careless use of language by the individuals that I have referred to.

20 The magistrate concluded that she was satisfied that the prosecution had proven the offence beyond reasonable doubt.

21 Before setting out the submissions on the appeal, I will note the relevant legislation.

22 Under the Criminal Procedure Act, there were two avenues of appeal available to the appellant following his conviction and sentencing. Section 272 provides that a party to a criminal proceeding (other than a committal proceeding) in the Magistrates' Court may appeal to the Supreme Court on a question of law from a final order of the Magistrates' Court in that proceeding. That was the course adopted by the appellant in this case. After hearing and determining the appeal, the Supreme Court may make any order that it thinks appropriate, including an order remitting the case for rehearing to the Magistrates' Court with or without any direction in law.[6]

23 The second avenue open to the appellant, which is a much more commonly used process, is under s 254 of the Act. A person convicted of an offence by the Magistrates' Court in a criminal proceeding conducted as a summary hearing may appeal to the County Court of Victoria against the conviction and sentence imposed by the court, or against sentence alone. The appeal must be conducted as a rehearing and an appellant is not bound by the plea entered in the Magistrates' Court.

24 A person who appeals to the Supreme Court on a question of law abandons finally and conclusively any right to appeal to the County Court in relation to that proceeding.[7]

25 Section 4A of the Jury Directions Act applies to a summary hearing under the Criminal Procedure Act.[8] The section provides by sub-section (2):

4A Application of Act to criminal proceedings without juries

The court's reasoning with respect to any matter in relation to which Part 4, 5, 6 or 7 makes provision:

(a) must be consistent with how a jury would be directed in accordance with this Act.

(b) ...

26 In argument, the appellant referred to s 11 (which is a provision of Part 3 of the Act). Section 11 requires counsel to assist the court in identification of matters in issue, while s 12 requires that after the matters in issue have been identified, the prosecution and defence counsel must each request that the trial judge give, or not give, to the jury particular directions in respect of the matters in issue and the evidence in the trial relevant to the matters in issue:

11 Counsel to assist in identification of matters in issue

After the close of all evidence and before the closing address of the prosecution -

(a) the prosecution must inform the trial judge whether it considers that the following matters are open on the evidence and, if so, whether it relies on them -

(i) any alternative offence, including an element of any alternative offence;

(ii) any alternative basis of complicity in the commission of the offence charged and any alternative offence; and

(b) defence counsel must then inform the trial judge whether he or she considers that the following matters are or are not in issue -

(i) each element of the offence charged;

(ii) any defence;

(iii) any alternative offence, including an element of any alternative offence;

(iv) any alternative basis of complicity in the commission of the offence charged and any alternative offence.

1. Legal practitioners must request that particular directions be given or not given

After the matters in issue have been identified in accordance with section 11, the prosecution and defence counsel must each request that the trial judge give, or not give, to the jury particular directions in respect of -

(a) the matters in issue; and

(b) the evidence in the trial relevant to the matters in issue.

27 Parts 4 to 7 of the Jury Directions Act make provisions in respect of evidential directions on a number of topics, some of which were referred to by counsel in his closing submissions to the magistrate, as I have noted.

28 The essential issue in this appeal is to construe precisely what Parliament intended by s 4A of the Jury Directions Act. For that purpose, I will refer to the extrinsic materials, the purposes of the Act and its guiding principles.

29 Relevantly, the explanatory memorandum to the Bill explained:

By imposing the broad requirements that courts reason consistently with "how a jury would be directed", the section will operate similarly to a hearing in which the parties had requested every direction that it would have been open to request (unless there would have been good reasons not to give a requested direction).[9]

30 In his second reading speech, the Attorney-General did not shed much light on the purposes of s 4A:

The Bill will also clarify how the Jury Directions Act applies to criminal proceedings before magistrates and Appellant Judges. For example, the Jury Directions Act provides that forensic disadvantage to an accused due to delay may only be taken into account if the court is satisfied that the accused has actually experienced a significant forensic disadvantage. It is appropriate that a magistrate hearing a criminal case involving delay and forensic disadvantage uses this same reasoning.[10]

31 The purposes of the Jury Directions Act are identified in s 1:

1 Purposes

The purposes of this Act are -

(a) to reduce the complexity of jury directions in criminal trials; and

(b) to simplify and clarify the issues that juries must determine in criminal trials; and

(c) to simplify and clarify the duties of the trial judge in giving jury directions in criminal trials; and

(d) to clarify that it is one of the duties of legal practitioners appearing in criminal trials to assist the trial judge in deciding which jury directions should be given; and

(e) to assist the trial judge to give jury directions in a manner that is as clear, brief, simple and comprehensible as possible; and

(f) to provide for simplified jury directions in relation to specific issues; and

(g) to re-enact the Jury Directions Act 2013 with amendments; and

(h) to amend the Evidence Act 2008 in relation to corroboration directions; and

(i) to make consequential and other amendments.

32 The guiding principles are set out in s 5 of the Act:

5 Guiding principles

(1) The Parliament recognises that -

(a) the role of the jury in a criminal trial is to determine the issues that are in dispute between the prosecution and the accused; and

(b) in recent decades, the law of jury directions in criminal trials has become increasingly complex; and

(c) this development -

(i) has made jury directions increasingly complex, technical and lengthy; and

(ii) has made it increasingly difficult for trial judges to comply with the law of jury directions and avoid errors of law; and

(iii) has made it increasingly difficult for jurors to understand and apply jury directions; and

(d) research indicates that jurors find complex, technical and lengthy jury directions difficult to follow.

(2) The Parliament further recognises that it is the responsibility of the trial judge to determine -

(a) the matters in issue in the trial; and

(b) the directions that the trial judge should give to the jury; and

(c) the content of those directions.

(3) The Parliament further recognises that it is one of the duties of legal practitioners appearing in a criminal trial to assist the trial judge in his or her determination of the matters referred to in subsection (2).

(4) It is the intention of the Parliament that a trial judge, in giving directions to a jury in a criminal trial, should -

(a) give directions on only so much of the law as the jury needs to know to determine the issues in the trial; and

(b) avoid using technical legal language wherever possible; and

(c) be as clear, brief, simple and comprehensible as possible.

(5) It is the intention of the Parliament that this Act is to be applied and interpreted having regard to the matters set out in this section (to be known as the guiding principles).

33 Grbic v Pitkethly,[11] the appellant submitted, established that magistrates should direct themselves in a similar manner to how a judge would direct a jury. In Beames v Police (SA),[12] the court doubted that it was necessary for magistrates (or judges sitting without a jury) to direct themselves in precisely the same way as a judge would direct a jury, but did consider that there needed to be evidence - usually derived from reasons for a decision - that the judge or magistrate addressed the evidence in the way a jury would be required to.

34 The appellant submitted that the Jury Directions Act was amended to make clear that its provisions applied to a summary proceeding. The appellant contended that such clarity was necessary due to amendments that repealed directions and warnings previously contained in the Evidence Act and inserted them into the Jury Directions Act.[13]

35 The appellant's submissions distinguish general directions from particular directions. As to the former, it would seem ordinarily unnecessary for magistrates to direct themselves with general directions. However, where a magistrate is requested to and is therefore obliged to give direction,[14] the magistrate must identify the relevant evidentiary principles and how they were applied to the issues in the case. This objective can only sensibly be achieved if the magistrate does so in expressing reasons for the court's decision.

36 The appellant submitted that the magistrate's obligation to descend in the court's reasons to the level of detail that a trial judge would employ in charging a jury will arise where the practitioners have identified the issues and have sought a direction. What would then be required is a discussion between counsel and the bench and a decision made about which direction should or should not be considered. The appellant contended that the magistrate can only demonstrate compliance with s 4A through the court's expressed reasons. However, counsel accepted that s 4A could be interpreted as referring to the manner in which the court arrived at the conclusion it expressed, irrespective of the way in which it was expressed.

37 The language of the section speaks about the reasoning process and appears to express an underlying objective that the court is to have regard to principles that are now found in the Jury Directions Act, which on its face is not going to attract the attention of a magistrate as applicable in a summary hearing. Counsel accepted the proposition that the magistrate's path of reasoning may also be exposed by examining the exchanges that occurred between the counsel and the magistrate during the course of submissions.

38 The appellant contended that Fleming v The Queen[15] established that the magistrate's failure to make any reference in her reasons to a warning or direction that the law required to be taken into account was an error of law amounting to a substantial miscarriage of justice.

39 The appellant submitted, expressly, that the magistrate direct herself on:

(a) his good character;

(b) the proper use to be made of previous representations where the respondent relied on hearsay representations as complaint evidence;

(c) differences in the complainant's account and the various complaints relied on by the respondent;

(d) the necessity for a Liberato direction in the circumstances of the case; and

(e) permissible reasoning where he neither gave or called evidence.

The appellant contended that as the magistrate did not refer to these matters in her reasons for decision, I am entitled to conclude that the magistrate failed to have regard to those matters and thereby erred in law.

40 The appellant submitted that the magistrate's reasoning in respect of the inconsistencies in the victim's evidence best demonstrated that the magistrate had failed to reason in a manner consistent with how a jury would be directed in accordance with the Jury Directions Act. As noted above, the magistrate in finding (8) referred to inconsistencies in the victim's evidence.

41 The 'inconsistencies' the magistrate referred to were the disclosures attributed to the victim by other witnesses. Recalling that the victim's statement to the police was that the appellant placed his hand between her legs and touched her once on her perineum, the 'inconsistencies' were:

(a) the report attributed to the complainant in the Interpose report of 10 March 2017 that the appellant 'also slipped his hand/fingers inside the front gusset of her underpants and along the crease of her leg and his fingers on or near her labia';

(b) the victim's statement on or about 5 March 2017 that the appellant '[b]egan stroking my butt near my vagina...';

(c) the victim's statement in her Facebook Messenger chat with her friend - referring to the appellant - 'then he put his flashlight to me';

(d) the statement that the appellant's daughter attributed to the victim in her VARE that the appellant was 'rubbing his thumb between her bum crack and I don't know, like, he would lick his thumb and do that';

(e) the statement attributed by the appellant's daughter to the victim in the VARE that the appellant touched the victim's 'bum inappropriately, and, like, her breasts...'; and

(f) the statement to the victim's mother by the appellant's ex‑wife attributing to the victim that the appellant put his hand on her 'backside'.

42 Additionally, the appellant contended that the magistrate had misattributed evidence given by the victim's mother to the appellant's ex‑wife, which of itself suggested confusion in the magistrates' reasoning.

43 The appellant contended that of these, the victim's own statement could not be dealt with in a perfunctory manner, as the magistrate did, as if it was a statement by a witness rather than that of the victim. More significantly, dismissing the other witnesses' accounts as 'careless', but otherwise corroborating of the victim, did not adequately account for the content of the evidence of those other witnesses and their level of professed certainty about what they heard the victim recount to them. In this way, the appellant submitted that significant inconsistencies were dismissed as poorly expressed corroborating evidence. The reasoning did not inform the appellant as to if, or how, the magistrate reconciled the supposed lack of care by those witnesses in their language about statements they attributed to the victim, with the apparent uncritical acceptance of their evidence about acts each recounted and relied upon as inculpatory of the appellant.

44 The appellant submitted that the victim clearly described a very specific manner of offending that ought to have been consistently recited to the complaint witnesses. However, those complaint witnesses, apparently accepted by the magistrate, each described different conduct by the appellant and spoke about the certainty of their recollection of what they were told.

45 The proper use of complaint evidence and the evaluation of the victim's evidence in this case were significant elements of the prosecution case, and clearly formed part of the magistrate's path of reasoning in determining the appellant's guilt.

46 The appellant's complaint was not that the magistrate was required to recite the legal directions he noted in his closing submission, but that she was obliged, and failed, to make any adequate reference to them in her decision that might demonstrate that she reasoned by reference to the manner in which a jury should be directed when evaluating this evidence. He contended that, as a matter of logic, these findings could not reveal that the magistrate reasoned as s 4A required when she considered all of these inconsistencies.

47 The appellant contended that the level of detail to which the magistrate must descend in the written expression of the reasoning process will be informed primarily by the nature of the proceeding, the seriousness of the charge, the complexity of the factual dispute and the directions that were sought by the parties. Here, the evidentiary disputes were quite finally balanced, requiring that the magistrate work through an analysis conducted by reference to the relevant law dealing with complaint evidence, identified by reference to the Jury Directions Act.

48 Alternatively, the appellant contended, by his second ground, that a failure to provide adequate reasons is an error of law.[16] The appellant contended that the magistrate erred in law because she did no more than set out the evidence and announced her decision.

49 Citing Alessi v SE,[17] the appellant contended that the criteria for adequate reasons for judgment included that the magistrate should refer to relevant evidence, set out material findings of fact and any conclusions or ultimate findings of fact reached, and provide reasons for making the relevant findings of fact and the conclusion.

50 The appellant submitted that, as the Court of Appeal explained in Sun Alliance Insurance Ltd v Massoud,[18] the provision of adequate reasons for a decision serves at least three purposes:

(a) to enable the parties to see the extent to which their arguments had been understood and accepted as the basis of a judge's decision;

(b) to further judicial accountability; and

(c) to enable interested persons to ascertain the basis upon which like cases will probably be decided in the future.

51 The appellant contended that the magistrate needed to work through the facts to which attention was directed by the submission about the jury directions that were relevant, in order to apply the relevant law to those facts in her reasons.

52 The appellant accepted that whether the court had satisfactorily complied with s 4A required identification of the court's path of reasoning, either from observations made by the magistrate during submissions or in her reasons for her decision. Accordingly, he agreed that ground two would succeed or fail for the same reasons as ground one.

53 The appellant submitted, in support of the third ground of appeal, that a necessary corollary of the requirement for judicial officers to provide adequate reasons for a decision is that counsel may seek further reasons or clarification from the judicial officer.[19] The appellant's counsel accepted in argument that there was a distinction between counsel's obligations to assist a judge to avoid error when directing a jury and the present context. However, the appellant contended that he was entitled to know the extent to which his arguments were understood and either accepted or rejected by the magistrate, and on what basis. Further, adequate reasons are required to identify whether there was an error of law on the part of the primary court.

54 Accordingly, the appellant submitted that the magistrate erred in law when she refused to provide further reasons or to hear from counsel as to the clarification sought, and threatened to proceed to sentence the appellant peremptorily if his counsel did not desist and make his plea in mitigation.

55 The final ground of appeal was that the findings of the magistrate were unsafe and unsatisfactory. The appellant's written submission supporting this ground was brief. Counsel contended that in declaring that she found the victim to be a truthful witness who was not lying, and finding it impossible that her version was concocted, the magistrate impermissibly decided the case as if accepting the victim as truthful was inconsistent with reasonable doubt as to the appellant's guilt. The appellant submitted that this implied the magistrate had failed to take heed of the principle expressed in a Liberato direction.

56 By reference to both Berlyn v Brouskos[20] and S v Crimes Compensation Tribunal,[21] the appellant maintained that the question raised by ground four - whether the magistrate's failure to address matters where a direction is sought is sufficient to amount to unsafe and unsatisfactory conviction - was a question of law properly within the jurisdiction of this court.

57 The appellant did not address this ground in oral submissions.

58 The respondent contended, in respect of ground one, that the submissions made by the appellant's counsel to the magistrate were detailed about the directions of law that she should consider, and that no error of law was made out because the magistrate did not refer specifically to those directions in her reasons. The magistrate was neither obliged to, in effect, give herself oral directions or list those directions in her reasons for convicting the accused.

59 Further, the respondent contended that the magistrates' reasons, although not specifically adopting the language of the Charge Book, sufficiently demonstrated that she took relevant matters into account. For example, in relation to 'good character', the magistrate specifically noted that the appellant had no prior convictions. Secondly, without referring to specific directions and permissible reasoning when the appellant neither gave nor called evidence, the magistrate noted and took into account that the appellant denied categorically any wrongdoing and that she was conscious that the appellant neither gave evidence nor called any on his behalf and was under no obligation to do so.

60 Thirdly, the respondent contended the magistrate made a clear finding about inconsistencies in the victim's evidence.

61 The respondent submitted that these examples were sufficient to demonstrate that the magistrate was aware of and applied the law as identified in the directions that are used to charge juries.

62 The respondent submitted that the mischief that s 4A addressed was that the Jury Directions Act expresses rules that purport to modify the operation of the common law and to supplement the law of evidence as it is expressed in the Evidence Act and, to a lesser extent, the Evidence (Miscellaneous Provisions) Act 1958 (Vic). It then became apparent that the Jury Directions Act did not, when first enacted, purport to have an effect on the operation of the rules of evidence in summary criminal hearings. The difficulty that emerged was that the directions that the Act required to be given to a jury, particularly evidential directions, included some repeals or abolitions of certain common law rules. If those reforms had no application to summary hearings, magistrates had to draw upon the old common law rules, producing a conflict in a way that criminal matters were determined between summary hearings and jury trials. The respondent suggested that good examples of such conflicts concerned the use to be made of an accused exercising his right to silence and the use to be made of post-offence conduct.

63 The respondent contended, correctly in my view, that s 4A operates to achieve consistency between summary hearings and jury trials in the reasoning that is adopted by the decision maker.

64 The respondent contended that it is presumed that a magistrate will know the law and apply it correctly to the facts and, accordingly, will incorporate into the mental reasoning processes the directives and dictates of the Jury Directions Act.

65 The respondent contended that ground two essentially reframed ground one and reiterated his submission that the magistrate had provided careful and well thought out reasons that demonstrated that she had exercised care and had had regard to all of the evidence.

66 In respect of ground three, the respondent submitted that the appellant was not entitled to any further reasons and that the magistrate's refusal to entertain the appellant's request for further reasons did not constitute a denial of procedural fairness.

67 Finally, the respondent contended that ground four was drafted as a question of fact alone.[22] Alternatively, the respondent submitted that the decision was not, and could not be viewed as, unsafe or unsatisfactory. The findings of the magistrate were not unreasonable and were supported by evidence that did not oblige the magistrate to come to a different conclusion.[23] The respondent contended that the magistrate had the advantage over this court in that she saw and heard the witnesses called at trial.

68 The respondent did not address this ground in oral submissions.

69 The first issue to resolve is how s 4A of the Jury Directions Act is to be construed. The section plainly does not require that magistrates explicitly direct themselves in the way a trial judge directs a jury. The evident purpose of the section is to constrain a court's reasoning from being inconsistent with how a jury would be directed to reason on any matter to which Parts 4 to 7 makes provision. The principles in respect of the matters identified in those parts of the Act are to be used by all fact-finding tribunals, not just juries. The relevant focus of the language of the section is not on the process by which a tribunal of fact is directed, but rather, on the process of reasoning adopted by a magistrate as the tribunal of fact in a summary hearing. This is an important distinction.

70 What the section mandates is that there must be a consistency. Once the required consistency is understood, the meaning of s 4A is clear.

71 The purpose and guiding principles of the Jury Directions Act focus on how a jury is to be directed. Jury directions are primarily intended to explain so much of the law as is necessary to enable the jury to determine the issues in a trial. Parts 4 to 7 of the Act set out new rules and restatements of directions on particular issues to achieve the objectives identified in s 1 of the Act. Those objectives include reduced complexity of directions, simplification and clarification of issues and facilitating greater assistance by legal practitioners to the trial judge in directing juries in a manner that is as clear, brief, simple and comprehensive as possible.

72 In a summary criminal hearing before a magistrate under Chapter 3 of the Criminal Procedure Act, the same fact-finding function of determining the issues in the trial is performed by the magistrate. To this end, magistrates must understand so much of the law as is necessary to enable them to determine the issues in a summary hearing. The consistency required by s 4A is between the manner in which a magistrate, as the tribunal of fact in a summary hearing, reasons with respect to any matter provided for in the nominated parts of the Jury Directions Act, and the way that a jury is to be directed to reason about such matters.

73 Put another way, the section regulates the required reasoning process of magistrates as fact-finders in summary hearings, by requiring consistency with the principles identified by the Jury Directions Act for the manner in which judges instruct juries to reason about the same matters. What is sought is consistency in the reasoning process employed by fact-finders. The section says nothing about the content of reasons for a decision to be expressed by a magistrate, notwithstanding that the Act says a great deal about the content of directions given by judges to juries.

74 Two significant questions arise. First, what are the implications for the process by which magistrates are brought to the task of reasoning in the required manner and, secondly, how is the discharge of that obligation to be assessed?

75 The Jury Directions Act imposes specific obligations on advocates by ss 11 and 12_,_ found in Part 3 of the Act. The scope of operation of ss 11 and 12 is made clear by the purposes articulated in s 1 and s 9 of the Act. Neither section was amended when the Act was amended to incorporate s 4A. Plainly, it is not intended by the Act that magistrates must be assisted in achieving that consistency of reasoning in the manner in which judges are assisted when charging juries.

76 In s 5(5), Parliament expressed its intention that the Jury Directions Act is to be applied and interpreted by having regard to the guiding principle set out in that section. Again, there was no amendment to this section when s 4A was introduced into the Act. None of the guiding principles are relevant in the context of construing s 4A.

77 In his second reading speech, the Attorney‑General stated that the Bill[24] would clarify how the Jury Directions Act applied to criminal proceedings before magistrates and appellate judges. The example that the Attorney‑General gave, in the context of significant forensic disadvantage (not an issue in the present case), envisaged that a purpose of s 4A was to identify that when a particular issue was raised in a summary proceeding as relevant to its disposition, the legal principles upon which a jury would be instructed to reason, applied to a magistrate. Consistently, the explanatory memorandum stated that the broad requirement to reason consistently with how a jury would be directed required that a magistrate reason as if the parties had requested every direction that it would have been open to request.

78 I do not accept the appellant's contention that, by the force of s 11 of the Jury Directions Act, it was incumbent on practitioners to identify the matters in issue and to request, in compliance with s 12, that the magistrate consider, or not consider, particular directions, with the consequence that, in much the same way as occurs in a jury trial, counsel and the magistrate would discuss which directions should or should not be contemplated in the reasoning process.

79 There are at least two reasons not to do so. First, s 4A does not apply all provisions of the Jury Directions Act to summary hearings. Its operation is limited to matters in relation to which Parts 4 - 7 make provision. Sections 11 and 12 are found in 'Part 3 - Request for Directions'. Section 9 defines the purposes of Part 3 to be to assist a trial judge to discharge his or her duties to determine the matters in issue in the trial and the directions that the jury should receive, and to ensure that legal practitioners discharge their duty to assist the trial judge in that determination. Irrespective of whether such a purpose might sensibly be imposed in summary proceedings, the Jury Directions Act does not do so.

80 The second reason is founded on the significant procedural differences between a summary hearing and a trial on indictment before a jury that are clearly identified by the Criminal Procedure Act. The Act does not specifically contemplate the need for submissions from the prosecution and the defence to assist a magistrate in a summary hearing to identify the matters in issue in the trial, or the path of reasoning that ought to be adopted by the magistrate. The essential features of a summary hearing warrant a different approach.

81 Sections 73 and 74 of the Criminal Procedure Act require that the prosecution and defence have the magistrate's leave to address the court for the purpose of summing up the evidence.

74 Closing address of the accused

(1) In a hearing under this Part -

(a) after the close of all evidence; and

(b) after the closing address of the prosecutor, if any, under section 73 -

the Magistrates' Court may grant leave, if it is appropriate to do so, to the accused to address the court for the purpose of summing up the evidence.

(2) The Magistrates' Court may limit the length of the closing address of the accused.

82 Magistrates in this State do not routinely grant leave to advocates to address on the evidence by way of summing up, or to put issues-based submissions in a manner that relates legal principle to the evidence. Whether that practice is strictly required by ss 73 and 74 was not an issue on this appeal. Plainly, such leave was not sought from or granted by the magistrate and her ruling in this context was not challenged on this appeal.

83 The restriction of final submissions at the conclusion of evidence to something less than the usual practice in a jury trial is a characteristic of a summary hearing. Had Parliament intended to amend that practice, it could readily have done so by providing that magistrates be addressed by the prosecution and the defence after the close of the evidence in a like manner as is required by Part 3.

84 Although the point is not raised on this appeal, I would not be readily persuaded that the expression 'for the purpose of summing up the evidence,' where it appears in ss 73 and 74 of the Criminal Procedure Act, should be construed broadly so as to preclude advocates, unless they have the leave of the court, from assisting a magistrate with submissions that explain the relationship between the applicable legal principles and the evidence that has been received. Such an address need not amount to summing up the evidence. Although that may not be done without the magistrate's leave, the mischief that s 4A seems designed to ameliorate might be more readily avoided when relevant submissions of law, such as pointing to pinpoint references in the Charge Book to explain the proper process of reasoning that must be adopted, are advanced in the context of issues that relate the legal principles affecting the proofs in the proceeding to the evidence that has been received.

85 I would not have thought that submissions in this form would require the leave of the court, but may materially assist the court to reason in the manner required by s 4A of the Jury Directions Act.

86 The second issue lies at the crux of this appeal. How is compliance with the directive of s 4A to be assessed? The consistency between how a jury would be directed and how a magistrate must reason with respect to particular matters cannot be objectively verified by textual analysis of the judge's charge, as it can in a jury trial. Compliance with s 4A can only be found by analysis of the objective indicia of the court's reasoning, which, as I have noted, is to be found primarily in the court's expressed reasons for its decision, but may also appear from exchanges between the bench and bar during the course of submissions.

87 The appellant contended that the absence of an express path of reasoning demonstrating that the magistrate had correctly and consistently reasoned as she was required to do by s 4A was an error of law that enlivened this court's jurisdiction, pursuant to s 272 of the Criminal Procedure Act. I am unable to accept this submission.

88 It is in this context that the alternative appeal path, namely a de novo hearing under s 254 of the Criminal Procedure Act assumes significance. The exchange between counsel and the magistrate that is the basis for ground three makes it clear that the magistrate contemplated that it was unnecessary for her to give further or more detailed reasons for her decision because the appellant could pursue a de novo hearing in the County Court under this provision.

89 In Perkins v County Court of Victoria,[25] the appellant sought judicial review of the decision of a County Court judge on an appeal against a conviction recorded in the Magistrates' Court. The appellant alleged error of law on the face of the record, in that the judge's reasons for decision did not disclose an adequate basis for upholding the charges. Judicial review under Order 56 was refused and, on appeal, Buchanan JA observed, pertinently for the question before me:

There is no general principle that a court's failure to give reasons is an error of law which vitiates the court's decision. That is not to deny the importance of the giving of reasons to the process of judicial decision-making. Want of reasons may amount to an error of law where the absence of reasons would frustrate a right of appeal, although even where a right of appeal exists, the nature of the decision and the circumstances of the case may require no more than a brief ruling, and, where an appeal is de novo, an absence of reasons for the decision below can have no effect. Moreover, the provision of reasons for decisions affecting persons' rights and liabilities is usually desirable, serving objectives such as candour in decision- making, the accountability of decision-makers, the reconciliation of parties to the results of litigation and promoting the drawing of conclusions which are rational and soundly based on legal principles. Nevertheless, the general desirability of reasons, and in certain cases their necessity, in my view are not sufficient considerations to found an all-embracing principle that failure to state reasons or adequate reasons for a judicial decision constitutes an error of law vitiating the decision.[26]

90 That reasoning is apposite in the present case. Because the Criminal Procedure Act provides for a de novo appeal, the insufficiency in the reasoning of the magistrate contended for by the appellant, assuming it is deficient for present purposes, cannot have the effect contended for by the appellant. Such deficiencies in reasoning have no effect. I have not been persuaded that the appellant has demonstrated an error of law that vitiates the magistrate's decision. For these reasons, grounds one, two and three have not been made out.

91 I would add that, in respect of ground three, the appellant cited Ta v Thompson,[27] another judicial review proceeding challenging the decision of a County Court judge hearing a de novo appeal against a conviction recorded by a magistrate. Again, the adequacy of the magistrate's reasons for decision was in contest. Osborn JA, with whom Beach JA agreed, observed that the relevant principle applied equally to both judicial review for error of law on the face of the record and appeals on a question of law. It is not sufficient to show the mere possibility that the reasons are deficient. The appellant court must be satisfied that there was, in fact, a vitiating error of law.

92 Before the magistrate, this case turned fundamentally on an assessment of the credit of the victim. The appellant's attack on the adequacy of the magistrate's reasons was that they failed to demonstrate a basis on the relevant principles as explained in the Jury Directions Act. In this sense, the appeal was not argued on the basis that an inference of substantive error could be drawn, being that the magistrate failed to have regard to the principles to which her attention was directed in submissions by reason of her failure to avert to the relevant considerations in stating her reasons.[28]

93 The appellant referred me to the observations of Beach JA in Ta v Thompson,[29] which noted that that had there been any doubt about the County Court judge's path of reasoning at the time of the ex tempore decision, the appellant's counsel could have sought further reasons or clarification from the court and accordingly must be regarded as having acquiesced in the manner in which the judge determined the matter.

94 I do not consider that this observation assisted the appellant in the present case. Beach JA was expressing reasons that told against granting of certiorari in that proceeding on discretionary grounds. That is not this case.

95 The applicable principle is that identified by Buchanan JA in Perkins, namely that the appellant has failed to demonstrate a vitiating error of law principally because the appellant's right of appeal was not frustrated.

96 In respect of ground four, the written submissions for both parties were based on the well understood ground of appeal from jury trials to the Court of Appeal, being that the verdict of the jury is unreasonable or cannot be supported, having regard to the evidence. This ground of appeal is now found in s 276 of the Criminal Procedure Act in respect of appeals from the County Court or from the Trial Division of this court. The principles upon which an appellate court considers an appeal on this ground have been considered in numerous appellate decision that were most recently reviewed by the Court of Appeal in Pell v The Queen.[30]

Where the unreasonableness ground - often referred to as the 'unsafe and unsatisfactory' ground - is raised, the task for the appeal court is to decide whether, on the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. In answering that question, the High Court has said, the appeal court

must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses.

It should be emphasised that the inquiry which this ground requires is a purely factual one. Unlike the position where a ground of appeal contends that the trial judge has erred in law - for example, by admitting certain evidence or in giving (or failing to give) the jury a particular direction of law - no discrete question of law arises. Rather, the appeal court reviews the evidence as it was presented to the jury and asks itself whether - on that factual material - it was reasonably open to the jury to convict the accused.[31]

98 Weinberg JA observed that there seems to be a misconception within some quarters that when the Court of Appeal deals with an appeal against conviction, it considers only questions of law and never questions of fact.[32] Noting that the ground of appeal is based upon a statutory formulation that has its origins in the Criminal Appeal Act 1907 (UK), the phrase 'unsafe or unsatisfactory' was first used when the relevant English provision was amended to require appellate judges to consider whether the impugned verdict was 'unsafe or unsatisfactory'. The High Court in MFA v The Queen[33] observed that no equivalent expression was to be found in any of the statutes, state or territory, governing appeals against conviction, in Australia.[34]

99 Weinberg JA observed that in both Gipp v The Queen[35] and Fleming v The Queen,[36] the High Court specifically deprecated the use of the attempted synonym (unsafe or unsatisfactory) rather than the actual words of the statutory formulation (unreasonable or unable to be supported having regard to the evidence).

100 It is not necessary in these reasons to canvass extensively the state of the law that governs the ground of appeal established by s 276 of the Criminal Procedure Act.

101 The respondent's written submission was that ground four was drafted as a question of fact alone and did not involve a question of law, as is required for an appeal under s 272. The distinction that is relevant here is that between a question of law and an error of law. It may be accepted that a tribunal of fact that convicts unreasonably or whose decision cannot be supported having regard to the evidence makes an error of law, but the question to be addressed on appeal, is a question of fact. The Criminal Procedure Act provides that the right of appeal to this court is restricted to questions of law. Where, as here, the appeal concerns a question of fact, the convicted person's right of appeal is found in s 254 of the Act.

102 Although what I have said is sufficient to dispose of this ground, I would add that no specific submission was put to me that it was not reasonably open on the whole of the evidence for the magistrate to be satisfied beyond reasonable doubt that the appellant was guilty. In his written submission, the respondent submitted, in a general sense, that the cumulative effect of the evidence, and the totality of the circumstances, allowed the magistrate to return a guilty verdict and that the evidence led before the magistrate did not oblige her to come to a different conclusion. On the basis of the submissions made to me, I was not persuaded that the state of the evidence was such as to preclude the magistrate, acting reasonably, from being satisfied of the appellant's guilt to the requisite standard.

103 For the foregoing reasons, the appeal is dismissed.

[1] This was the applicable statutory provision at the time of the offending, but the offence of "indecent act with a child under sixteen" was repealed by s 16 of the Crimes Amendment (Sexual Offences) Act 2016 (Vic) and replaced with the offence of "sexual assault of a child under the age of 16", now found in s 49D of the Crimes Act.

[2] Now found in Part 4.15 of the Charge Book.

[3] See now Part 4.25 of the Charge Book.

[4] Liberato v R [1985] HCA 66; (1985) 159 CLR 507.

[5] See Part 4.26 of the Charge Book.

[6] Criminal Procedure Act 2009 (Vic) s 272(9).

[7] Criminal Procedure Act 2009 (Vic) s 273.

[8] Section 4A was inserted in the Jury Directions Act 2015 by s 3 of the Jury Directions and Other Acts Amendment Act 2017 (Vic) and commenced operation on 1 October 2017.

[9] Explanatory Memorandum, Jury Directions and Other Acts Amendment Act 2017 (Vic) 3.

[10] Victoria, Parliamentary Debates, Legislative Assembly, 22 February 2017, 297 (The Hon. Martin Pakula, Attorney-General).

[11] [1992] FCA 451; (1992) 38 FCR 95, 102, 105, 107.

[12] [2002] SASC 405; (2002) 135 A Crim R 447, 452.

[13] For example, directions on identification evidence once located in s 116 of the Evidence Act 2008 are now located in s 36 of the Jury Directions Act 2015. Directions on unreliable evidence once located in s 165 of the Evidence Act 2008, are now located in s 32 of the Jury Directions Act 2015.

[14] Jury Directions Act 2015 ss 12, 14.

[15] (1998) 197 CLR 250, 260, 262-4.

[16] R v Keyte (2000) 78 SASR 68, 74-5, 77-9, 82; Goodrich Aerospace Pty Ltd v Arsic [2006] NSWCA 187; (2006) 66 NSWLR 186; Fletcher Construction Australia Ltd v Lines MacFarlane & Marshall Pty Ltd (No 2) [2002] VSCA 189; (2002) 6 VR 1, 30-4.

[17] [2008] NSWSC 909; (2008) 187 A Crim R 427, 433.

[18] [1989] VicRp 2; [1989] VR 8, 19.

[19] Ta v Thompson [2013] VSCA 344; (2013) 46 VR 10, 26-7.

[20] [2002] VSC 377; (2002) 134 A Crim R 111, 118-9.

[21] [1998] 1 VR 93, 88-9.

[22] Berlyn v Brouskos [2002] VSC 377; (2002) 134 A Crim R 111, 117, 119.

[23] Badem (a pseudonym) v R [2016] VSCA 200, [40]-[47]; R v Klamo [2008] VSCA 75; (2008) 18 VR 644; R v Bayden-Clay [2016] HCA 35; (2016) 258 CLR 308, 329 [65]; M v The Queen [1994] HCA 63; (1994) 181 CLR 487, 494.

[24] Jury Directions and Other Acts Amendment Bill 2017.

[25] [2000] VSCA 171; (2000) 2 VR 246.

[26] Ibid 270 [56] (citations omitted).

[27] [2013] VSCA 344; (2013) 46 VR 10.

[28] Yendall v Smith Mitchell & Co Ltd [1953] VicLawRp 53; (1953) VLR 369, 379.

[29] Above n 27, 26 [83].

[30] (2019) VSCA 186.

[31] Ibid [12]-[13] (citations omitted).

[33] [2002] HCA 53; (2002) 213 CLR 606.

[36] (1998) 197 CLR 250.