//
© 2026 Zoe. All rights reserved.
Zoe is a legal information platform. Always consult the Federal Register of Legislation for authoritative text.
[2005] VSC 517
Supreme Court of Victoria
2005-12-22
Bongiorno J
Original judgment source is linked above.
Application for judicial review - procedural fairness - plaintiff with many prior convictions - breach of suspended sentence - reasonable opportunity to be heard - failure to give plaintiff opportunity to state case - decision of County Court quashed
Mr S. Carisbrooke, Acting Solicitor for Public Prosecutions
1 On 18 October 2005, the plaintiff, Glenn Edwin Wilson, a 48 year old man with a very large number of prior convictions, was due to appear before the County Court at Melbourne to be dealt with for breach of a suspended sentence order previously imposed by His Honour.
2 When court convened that morning, Mr Wilson was not in attendance. The transcript shows that the prosecutor told the judge that he had expected an adjournment application by Wilson. He suggested the proceeding should be adjourned but then, apparently having second thoughts, asked the judge whether he would be prepared to hear it in Wilson's absence. The judge replied by saying, "We had better issue a warrant."
3 The transcript also shows that some time later Mr Wilson attended the Court (apparently voluntarily) at which point the judge asked him if he understood that he had been charged with a breach of a suspended sentence. Wilson acknowledged the charge and in answer to a question from His Honour, admitted the breach.
4 The rest of the proceeding went as follows:
"HIS HONOUR: That's found proven. Do you want to argue anything about exceptional circumstances?
APPLICANT: Well, I do, but I haven't got - I can't do all the documentation in this short time, that's all, I can't.
HIS HONOUR: I have to impose that six months, do you understand that?
APPLICANT: Beg your pardon?
HIS HONOUR: I have to impose the six months.
APPLICANT: Yes.
HIS HONOUR: You understand that? That's what I'll do. Thank you. You can remove him. Thank you for coming back, Mr Hannan."
5 Mr Hannan was the prosecutor.
6 The rest of the transcript, which comprises only about another ten lines, reveals that a message had got to the judge before Court that morning that Wilson had sought to have the matter adjourned by a phone call to the registry.
7 There is no more fundamental rule of procedural fairness than that which requires a person or body determining the rights of a citizen to afford that citizen a reasonable opportunity to be heard. The rule is not modified nor rendered inapplicable by any opinion formed by the tribunal that the result of the proceeding is inevitable, or that there is nothing which could be said against the decision the tribunal proposes to give.[1]
8 In the circumstances of this case that rule was breached. Not only did the judge fail to give the plaintiff an opportunity to state his case as to why exceptional circumstances existed such that he should not have to serve the previously suspended sentence, but such failure occurred in circumstances where the court had been apprised of the plaintiff's intention to make an adjournment application. The plaintiff was given no opportunity to explain why he had not been present when the Court convened and was cut off when he commenced what appears to have been intended to be the foreshadowed adjournment application.
9 On this application for judicial review, Mr Elston, of Senior Counsel for the Director of Public Prosecutions, did not seek to support the course followed by the primary judge. The only submission he made was that as the remedy sought by the plaintiff was discretionary, the fact that there was no material before this Court to suggest that the order in respect of which relief is now sought was, in the event, wrong any order in the nature of certiorari should be refused in the exercise of that discretion.
10 There are two answers to this submission. First, the plaintiff is entitled to have the question of his breach of the suspended sentence dealt with according to law. To date it has not been so dealt with. The order sought to be quashed is an order which affects the liberty of the subject. Due process is all important. Secondly, the departure from proper standards of natural justice in this case was so great as to require the impugned decision to be quashed.
11 That a failure to afford procedural fairness to a litigant attracts this Court's supervisory jurisdiction by the use of orders in the nature of the prerogative writs is undoubted: Craig v. South Australia [1995] HCA 58; [1995] 184 CLR 163 at 176. That principle applies in this case. The decision must be quashed and the matter remitted to the County Court to be heard and determined according to law. In the circumstances the County Court ought to be constituted by a judge other than the primary judge.
12 Accordingly, the orders of this Court will be:
That the title of this proceeding be amended to delete the name of the first defendant, P.A. Coghlan QC and substitute Director of Public Prosecutions of Victoria.[2]
That the order of the County Court constituted by His Honour Judge Gebhardt of 18 October 2005 whereby the plaintiff was sentenced to six months' imprisonment be removed into this Court and quashed.
That the question of the breach by the plaintiff of a suspended sentence order imposed by His Honour Judge Gebhardt on 17 October 2002 be remitted to the County Court, constituted otherwise than by Judge Gebhardt, to be dealt with according to law.
That the Director of Public Prosecutions pay the plaintiff's costs of this application to be taxed.
[1] Now see particularly Antoun v R [2006] HCA 2, a decision published since this judgment.
[2] This order was made without objection to regularise the proceeding. See RSC r. 56.01 (3).
Wilson
DPP [2005] VSC 517