Cooper v County Court of Victoria & Gallaher [1998] VSC 149

8. By letter dated 1 September 1998, from the Victorian Government Solicitor to the Prothonotary, it was stated that, consonant with the principle annunciated in R v Australian Broadcasting Tribunal ex parte Hardiman & Ors [1980] HCA 13; (1980) 144 C.L.R. 13 at 35, the first defendant abides the order of the court. The second defendant is police informant below.

11. The plaintiff was convicted in the Broadmeadows Magistrates Court on 5 December 1996 of theft of two race horses. The informations were discrete in respect of each theft. One information was that at Balliang, between 11 October 1993 and 15 March 1994, the plaintiff stole the racehorse Briggs Boy, of the value of $3000, being property belonging to Doug Hilton. The other information was that at Balliang, between October 1993 and 10 October 1994, the plaintiff stole the racehorse Kadorie of the value of $900, being property belonging to TMDG syndicate, the principal being Doug Burgoyne. I have cited, literally, the terms of the informations.

14. The plaintiff was the subject of other like informations. The matter was heard over five days before Mr M. Cashmore, Magistrate at the Broadmeadows Magistrates Court, in December 1996. Evidence was led for the prosecution and for the defence. Ultimately, His Worship dismissed all the informations but two. The two are the subject of this Order 56 review.

17. His Worship on each of the two convicted the plaintiff and ordered that he perform a community based order for 12 months and perform 130 hours of unpaid community work over that period. I shall return with more particularity to the terms of the Orders.

20. The plaintiff appealed from the convictions and sentence to the County Court. Pursuant to the provisions of s.83(1) Magistrates Court Act 1989, the appeal was a de novo hearing on all grounds. His Honour Judge Kimm heard the appeals on 25 and 26 February 1998. He dismissed the appeals from conviction. After His Honour made an inquiry of counsel for the plaintiff, to which matter I shall return with more particularity, the appeals from sentence were abandoned.

23. Then, as I have stated, process pursuant to Order 56 was commenced in this court on 24 April 1998 and amended on 10 July 1998, seeking review of the decisions of His Honour Judge Kimm on 26 February 1998 dismissing the appeals from conviction.

26. The grounds for the review in the amended motion are as follows: first, that the learned Judge was wrong in law in failing to take into account a relevant matter namely that possession and ownership of the horse, Briggs Boy, had been transferred by the former owner to the defendant, here the plaintiff; second, that the Judge was wrong in law in failing to take into account relevant matters, namely the defendant, here the plaintiff, was a part-owner of the horse, Kadorie and possession of the horse had been provided to the defendant, here the plaintiff, by the syndicate of owners of the horse; third, that the Judge was wrong in law in failing to take into account the following relevant matters: first, at all material times the plaintiff was a registered horse trainer with the Victoria Racing Club; second, at all material times the horse, Briggs Boy, was entrusted to his care as a registered horse trainer and the former owner of the horse transferred the said horse to the plaintiff on condition that the plaintiff pay the owner the sum of $2000 when the horse had its first win; third, that at all material times the horse, Kadorie, was entrusted to his care as a registered horse trainer; fourth, that it was a term of the training contract between the plaintiff and the other owners of the horse, Kadorie, that the plaintiff could send that horse to an appropriate venue for agistment; and fifth, that the horse, Kadorie, was sent to Sunbury for agistment by the plaintiff and subsequently disappeared without the knowledge or consent of the plaintiff. It is further submitted that the Judge was wrong in law in failing to take into account the contractual relationship between the plaintiff and the owners of Briggs Boy and the contractual relationship between the plaintiff and his co-owners of Kadorie. It was finally submitted that the learned Judge was wrong in law in failing to take into account properly or at all, the evidence of a former owner, Douglas Hilton, that he had given the horse, Briggs Boy, on condition to the plaintiff.

29. There is no transcript of the judgment of the learned Judge below or of the proceedings before him.

32. In a helpful and comprehensive affidavit, sworn 14 August 1998, Mr N.J. Sevdalis, solicitor for the plaintiff, set forth the various factual matters traversed below. In particular, in paragraph 2 and thereafter, Mr Sevdalis set forth the evidence given including cross-examination of the various witnesses below, namely D.W. Hilton, J. Weir, G.W. Beaton, D. Gallaher (the second defendant) L. Cooper (the plaintiff herein) and G.J. Torr. That review extends far beyond what is appropriate for an Order 56 review but it has been helpful in providing a substratum of material, so that I can more fully understand the issues joined between the parties below. The Exhibit NJS3 to Mr Sevdalis' affidavit is deposed to be a true copy of the invoice incorporating the terms and conditions of training handed to the witness, Burgoyne and read by Burgoyne in the witness box. Mr Sevdalis has helpfully incorporated the terms of that exhibit in more legible form in paragraph 6 of the outlines of submission, tendered by him on behalf of the plaintiff.

35. In a comprehensive submission, Mr Sevdalis has reviewed the elements of the terms and conditions of the contract in respect of each horse and the matters traversed factually below. However, no terms and conditions, either overt or implied, warrant the larcenous removal of a horse in either instance by the trainer. The factual substratum which is lacking in the analysis and submissions fully articulated by

Mr Sevdalis, is that the underlying criminal act found to have occurred by the learned Magistrate (and by the Judge as well) is not defeated by the NJS3 terms and conditions or by the analysis advanced in respect of contract or agency between the respective parties. As I said to Mr Sevdalis in discussion, the client does not say "I want you to own it". The client says "I want you to train it". There is nothing in the terms and conditions which necessarily defeat the prosecution thesis of larcenous removal of either horse. The learned Judge and Magistrate heard the witnesses and on the matter of credibility were entitled to reach the conclusion each of them did.

38. In essence what is sought to be articulated on this motion is a factual dispute as to who was telling the truth about what actually happened in relation to Kadorie and Briggs Boy. It is inappropriate for this court on an Order 56 review to yet again traverse that factual material: Craig v. South Australia [1995] HCA 58; (1994) 184 C.L.R. 163 and Flynn v. D.P.P. and Ors (1998) 1 V.R. 322 and the authorities there referred to. If the factual material, as has been found both by the Magistrate and the learned Judge, having heard the numerous witnesses, involved larcenous takings, no terms of NJS3 or any other overt or implied terms of contract or agency defeat the underlying criminal acts. Upon the evidence both the Magistrate and the learned Judge found the criminal acts to have occurred. On the face of the record, the findings of larceny preclude Mr Sevdalis' argument on contract and agency.

41. As a consequence, I am satisfied that no certiorari should lie, because there has been no error shown on the face of the record, nor has any error been shown, even looking as beneficially as one can beyond the face of the record to the material relevant on an Order 56 review. An Order 56 review is not a further factual appeal.

44. There is, however, one matter upon which on the material (including that stated by Mr Sevdalis from the bar table, which I accept as having occurred) it appears that the learned Judge proceeded per incuriam. The certified extract of the Magistrates Court at Broadmeadows of the register of 5 December 1996, certified on 26 October 1998, sets forth that in each instance the plaintiff was convicted and was placed upon a community based order for a period of 12 months. The core conditions were there set out, namely that he be required to attend at Footscray Community Corrections Centre by the relevant time and date and that the Sunshine Magistrates Court be appointed the supervising court. A program condition was imposed that the defendant was to perform 130 hours of unpaid community work over 12 months. The plaintiff was also ordered to pay $765 costs. That same order was made in respect of each of the discrete informations upon which the plaintiff was respectively convicted. However, the community based order, NJS1, exhibited to Mr Sevdalis' affidavit of 14 August 1998 and signed by the learned Judge on 26 February 1998, contains a further program condition, namely "supervision of a community corrections officer". Supervision by a community corrections officer is not a core condition pursuant to s.37 of the Sentencing Act 1991 but is a program condition pursuant to s.38(1)(b) of that Act: see also Sentencing Regulations 1992 (S.R. 53 of 1992) Reg.12 and Form 5 thereto.

47. As I said to Mr Sevdalis in discussion, I consider that supervision by a community corrections officer is generally a beneficial and supportive element and is to be encouraged. However, the fact is that in the Magistrates Court, the learned Magistrate, having heard the matter over five days (and an experienced Magistrate at that), did not consider it appropriate to impose that program condition of supervision, pursuant to s.38(1)(b).

50. It appears that at the County Court appeal pursuant to s.83(1) Magistrates Court Act 1989, at the point of the proceeding at which the appeals against conviction were dismissed, the learned Judge effectively invited counsel for the appellant not to proceed upon the matter of conviction. Counsel sensibly acceded to that implicit invitation. I say sensibly, because, of course, on an appeal de novo pursuant to s.83, the sentence can be increased. The learned Judge then proceeded to dismiss both appeal against conviction and the sentence. It appears that the learned Judge proceeded per incuriam in imposing the s.38(1)(b) further program condition. I am quite confident that the learned Judge would not have, on the one hand, invited counsel to resume his seat and then on the other hand, impose a heavier penalty than that below. I say heavier, because it is an additional element of penalty, even though it is beneficent. As Mr Sevdalis has pointed out, as a horse trainer it may in the future make a difference if the plaintiff seeks to obtain a licence or take other steps, not to have that additional element in the sentence imposed upon him. In any event, it is a separate element under s.38(1)(b) and should not be treated minimally. I do not consider that the fact that NHS1 was also signed by the Plaintiff should involve that the slip not be remedied. On the basis of what Mr Sevdalis has stated, it appears that all previous overlooked the non-deletion of the supervision term at the time of signing the Order.

53. For those reasons I consider that I should allow the review, because on the face of the record there does appear to be a technical error, namely, the inclusion of the s.38(1)(b) further program condition. Accordingly, I grant the relief sought to that extent only, namely that I delete the further program condition, "supervision of a community corrections officer", which was made by the learned Judge in the County Court pursuant to s.38(1)(b) Sentencing Act 1991. I consider it is inappropriate to remit the matter back to the County Court for that to be done, as that would only involve unnecessary costs to the parties.

56. Finally, I do not consider that the allowing of the review on that slip, for in truth it is a slip, justifies the allocation of any costs to the plaintiff or the ordering of each party to pay its own costs. The reason that the plaintiff came to this court was to have the convictions quashed. That has failed. The mere slip in relation to the further program condition was not the purpose of the proceedings before me and I do not consider in the circumstances that any costs should be allowed against the defendants, nor should any order be made where each party pay its own costs. I consider the substance and justice of the matter requires that the substance of the judgment be followed and as a consequence I order that the plaintiff pay the costs of the defendants of this Order 56 review.