Plaintiff v First Defendant

1 By originating motion filed on 27 June 2014, the plaintiff seeks judicial review of a decision of the County Court dismissing an appeal by her against a conviction in the Magistrates' Court. The application is made pursuant to Order 56 of the Supreme Court (General Civil Procedure) Rules 2005 (Vic) ('the Rules'). The error alleged in the originating motion is simple. It is stated:

In respect of the charge of possession of drug of dependence, namely cannabis, there is error on the face of the record in that the judge's reasons were not adequate to enable the plaintiff to understand the judge's reasons for finding the charge proven.

2 The summons in support filed the same day was a little more illuminating as to the nature of the relief sought, namely an order in the nature of certiorari to quash the order made by the County Court of Victoria on 30 April 2014 in proceeding No AP121561, by which order the Court found the plaintiff guilty of possession of Cannabis and convicted and fined her $400. The plaintiff sought an order remitting the charge for rehearing to the County Court, differently constituted, to be determined according to law.

3 The plaintiff is in custody for other offences, and there have been delays in her obtaining funding for representation to prosecute the application in this proceeding. In consequence, the first defendant ('Mr Tonkin') has applied by summons to dismiss the proceeding on the grounds that the plaintiff has failed to provide any reviewable error and has failed to further advance the hearing of the proceeding.

4 The plaintiff applied for an adjournment of the directions hearing and of the application by Mr Tonkin to summarily dismiss the application. She did so by letter to the Registry of the Court. I rejected that application on 23 April 2015 as it was the second such application, the reasons given were insufficient and the period of the proposed adjournment was nearly a year. To hold the Crown at risk for such a period was not justified.

5 The second defendant filed an appearance, but did not take any part in the proceeding, indicating in a covering letter to its appearance that it would abide the result.[1]

6 The Originating Motion refers to an error of law on the face of the record by reason of the inadequacy of the reasons given by the County Court Judge. The Charge was a single charge of possession of a drug of dependence. The plaintiff claimed the drug was found in the course of an illegal search and that she had no knowledge of the drug being where it was found in her bedroom. The appellant bore the onus of establishing the defence that she was not in possession of the drug on the balance of probabilities.

7 This judicial review proceeding is analogous to an appeal on questions of law. The case below turned fundamentally upon an assessment of the credit of the plaintiff. She could not discharge the onus upon her unless her denial of knowledge of the presence of the drug was accepted as truthful and reliable. I consider that the County Court Judge's reasons are clearly sufficient, and there is no basis to conclude that there is any real prospect of a finding that the reasons were inadequate.

8 Although some of the relevant background material is found in an affidavit of the solicitor for the plaintiff, Chester Metcalfe,[2] a more comprehensive account is given in an affidavit in support of the application for summary judgment. The facts derived from both those affidavits are set out in the following paragraphs.

9 On 29 June 2011, the plaintiff was charged with possession of a drug of dependence, Cannabis L. The offence of possession of a drug of dependence, namely Cannabis, is an indictable offence under s 73 of the Drugs, Poisons and Controlled Substances Act 1981 (Vic) ('Drugs Act'). On 19 June 2012, the Magistrates' Court at Moorabbin Justice Centre convicted the plaintiff and fined her $400.[3] On 11 July 2012, the plaintiff lodged an appeal to the County Court.[4] The appeal was heard by Her Honour Judge Campton on 30 April 2014.[5] At the commencement of the appeal, the Court was advised that there was no issue taken by the plaintiff that the vegetable matter found by the police was Cannabis L, nor any issue as to the continuity of the possession of the exhibit.[6]

10 The prosecution called Senior Constable Kirby Tonkin and Detective Senior Constable Andrew Beaton. These witnesses gave evidence in accordance with the statements they had made, and which were included in the Preliminary Brief prepared for the purpose of the prosecution of the charge in the Magistrates' Court.[7] These statements were also exhibited to the affidavit in support of the summary judgment application.[8] The Court received as exhibits the certificate of a botanist, a DVD recording of the record of interview of the plaintiff and a transcript of the record of interview.[9] At the close of the prosecution case, the defence called the plaintiff and one Aneep Singh.[10]

11 In the Affidavit of the solicitor for the plaintiff, Mr Chester Metcalfe, there is a short description of the appeal, as follows:

1. On the hearing of the Appeal on the 30 April 2014, the First Defendant gave sworn evidence and was cross-examined. There was a dispute between the Plaintiff's version of events and that of the Police version of events, in particular as to the right of entry of the police to the Plaintiff's house, and subsequently her bedroom, without a warrant to search those places. There was further dispute as to the knowledge of the Plaintiff of the cannabis that was located in her bedroom.
2. Evidence was also given on behalf of the Police by Det. Snr. Cons. Andrew Beaton who was present with the First Defendant on the 29 June 2011 at the Plaintiff's premises.
3. At the conclusion of the Police evidence the Plaintiff gave sworn evidence and in particular she gave sworn evidence as to the Police entry to her house, and her bedroom, and she gave conflicting evidence to that of the Police witnesses. She further gave sworn evidence as to her having no knowledge that the cannabis was in her bedroom nor that she was aware that it was cannabis.
4. A witness was then called to give evidence on behalf of the Plaintiff being Mr Amrit Singh who was a resident of the Plaintiff's premises on the 29 June 2011. He gave sworn evidence as to how the cannabis had got into the Plaintiff's bedroom stating that he had found it in the house although was not aware that it was cannabis and he placed it in the Plaintiff's bedroom. He further gave evidence as to the number of other resident's residing in the Plaintiff's house on the 29 June 2011.
5. At the conclusion of the evidence of Mr. Singh the Plaintiff's case was closed and submissions were made to Her Honour Judge Campton as to the lawfulness of the search and as to the Plaintiff's knowledge as to the cannabis in her bedroom.
6. Her Honour concluded that she could not be satisfied on balance that the Plaintiff did not have knowledge of the drug and that she had an intention to exercise control of it. She further concluded that the Police did not conduct a search but had stumbled upon the cannabis, and that if she was wrong about that, the probative value would be strong enough to allow the evidence to be used against the Plaintiff. Her Honour said the Plaintiff had failed to satisfy her on balance as to the requisite extent and was satisfied the charge of Possession of a drug of dependence namely cannabis was made out. Her Honour set aside the Order of the Magistrates Court and in relation to the charge to which she had found the Plaintiff guilty, convicted and fined her the sum of $400.00 together with $44.00.[11]

12 Her Honour gave judgment ex tempore and from the notes prepared by the solicitor for the first defendant. Those reasons comprised, in summary, the following matters:

(a) A summary of the evidence of the prosecution and defence and the submissions made;

(b) That she accepted that because of the deeming provisions the onus is on the plaintiff to establish on the balance of probabilities that she did not have knowledge of the drugs;

(c) That she could not be satisfied on the balance of probabilities that the plaintiff did not have knowledge and control of the drugs;

(d) She referred to s 138 of the Evidence Act 2008 (Vic) and stated that she was satisfied that the police were not conducting a search when they found the drugs; and

(e) She further stated that if she was wrong in that conclusion, the probative value was such that the evidence would not have been excluded.

13 Her Honour accordingly found the charge proven, convicted the plaintiff and fined her $400. Forfeiture orders were also made in relation to the items seized, being a 'bong' and the Cannabis.

14 An appearance was entered for the first defendant by the Director of Public Prosecutions. The plaintiff's summons was due to be heard on 15 August 2014. On 14 August it was adjourned by consent to 17 November 2014, to enable the plaintiff to obtain a recording of the proceedings in the County Court, have a transcript prepared and file a further affidavit in support of the application.

15 Between 15 August and 13 November 2014, there were further communications received by the Office of Public Prosecutions from the plaintiff's solicitors. The solicitor for the first defendant received an email from the solicitor for the plaintiff, informing of difficulties in obtaining instructions from the plaintiff and having funds in place for the proceeding. The email also advised that the plaintiff was in custody on new charges, with a bail application listed for hearing on 19 November 2014.

16 On the adjourned date, the matter came before me. I was informed by the solicitor for the plaintiff that she had been charged with other offences, was in custody, was applying for bail and had not obtained a transcript of the hearing in the County Court, and that her solicitor was having difficulty obtaining instructions. It was accepted by the solicitor for the plaintiff, according to the solicitor for Mr Tonkin, that the proceeding did not appear to have any merit. I was also told by the solicitor for Mr Tonkin that he may apply for summary judgment.[12] I therefore ordered that any such application should be made by a certain date, and adjourned the proceeding to 4 February 2015.

17 On 19 November 2014, the bail application was made before Her Honour Ms Bakos, Magistrate, and was refused.

18 The summons seeking summary determination of the proceeding was duly filed on 28 January 2015, supported by the affidavit of Kentaro Michael Maddess affirmed 28 January 2015. That affidavit exhibited an audio recording of the hearing of the appeal before the County Court Judge.

19 On 2 February 2015, a letter from the plaintiff personally was received by facsimile transmission to the Registry of the Court. The plaintiff sought an adjournment to later in the year because she was then in custody at the Dame Phyllis Frost Centre and in the process of changing her legal team. This would take time. She also had a committal hearing on 24 March 2015 for "an existing case", so that an adjourned date at least two months after that was sought. There was also information from Counsel then appearing for the plaintiff indicating a difficulty facing the plaintiff in obtaining funding. In light of this request, an adjournment was granted over the objection of the solicitor for the first defendant.

20 On 20 April 2015, a further letter from the plaintiff personally was received by the Registry of the Court. It shows that the plaintiff's address continues to be the Dame Phyllis Frost Centre. In it, the plaintiff again sought an adjournment, saying that she faced problems getting clearance for the transfer of monies from India and could not have legal representation at the hearing on 23 April 2015. She was limited to transferring a limited amount of funds per annum, leaving her with the need to prioritise her expenditure. She asked that it be adjourned until after her trial scheduled for 18 January 2016. From this it appeared that she was committed for trial on the other charges.

21 Under s 73 of the Drugs Act a person is guilty of an offence if they have in their possession a drug of dependence. Section 5 of the Act defines possession as follows:

Without restricting the meaning of the word possession, any substance shall be deemed for the purposes of this Act to be in the possession of a person so long as it is upon any land or premises occupied by him or is used, enjoyed or controlled by him in any place whatsoever, unless the person satisfies the court to the contrary.

22 In R v Hiep Tan Tran,[13] Redlich JA (with whom Nettle and Neave JJA relevantly agreed) said:

To overcome the effect of the deeming provision in s 5, an occupier of a premises must satisfy the jury, on the balance of probabilities, that he or she was unaware that the drug was on the premises or had no intention to exercise control over the drug or the place where it was kept.[14]

23 The plaintiff's appeal to the County Court was under Part 6.1 of the Criminal Procedure Act 2009 (Vic) ('the CPA'). The County Court heard and determined the appeal in its appellate jurisdiction. There is no further right of appeal. The rights of appeal contained in Part 6.3 of the CPA apply to matters heard by the County Court in its original jurisdiction (see s 274 of that Act). The only avenue of redress from a conviction in the County Court in its appellate jurisdiction is judicial review.[15]

24 The common law jurisdiction of this Court to review decisions of inferior courts is subject to the procedure set out in Order 56 of the Rules. The jurisdiction is supervisory and does not entitle this Court to canvass matters that it would on an appeal. In a judicial review, the Court is concerned with the legality of what was done by the court or tribunal below, and is not concerned with the merits of the decision under review.

25 This is made clear in the decision of the High Court in Craig v South Australia,[16] where the Court noted that:

(a) Certiorari was a process by which a superior court, in the exercise of its original jurisdiction, supervises the acts of an inferior court or tribunal. It merely enables the quashing of an impugned order or decision upon one or more of a number of distinct grounds, of which the most important are:

(ii) failure to observe some applicable requirement of procedural fairness;

(b) Where the writ is sought on the ground of jurisdictional error, breach of procedural fairness or fraud, the superior court entertaining an application for certiorari can, subject to applicable procedural and evidentiary rules, take account of any relevant material placed before it;

(c) Where relief is sought on the ground of error of law on the face of the record, the superior court is restricted to 'the record' of the inferior court or tribunal and the writ will enable the quashing of the impugned order or decision only on the ground that it is affected by some error of law which is disclosed by that record; and

(d) It is not an appellate procedure enabling either a general review of the order or decision of the inferior court or tribunal, or a substitution of the order or decision which the superior court thinks should have been made.

26 Error of law on the face of the record constitutes a distinct basis for relief by way of judicial review in the nature of certiorari.[17] A failure to give reasons, or adequate reasons, where there is a duty to do so is an error of law.[18] In Victoria, where the reasons are part of the record, such an error is an error of law on the face of the record.[19]

27 Section 10 of the Administrative Law Act 1978 (Vic) extends the content of the record for the purposes of judicial review of this kind. It provides:

Any statement by a tribunal or inferior court whether made orally or in writing, and whether or not made pursuant to a request or order under section 8, of its reasons for a decision shall be taken to form part of the decision and accordingly to be incorporated in the record.

28 Section 10 does not, however, make the transcript of the proceedings part of the record. It only goes part of the way contemplated by the High Court when it observed in Craig:

More importantly, the approach that the transcript of proceedings and the reasons for decision constitute part of 'the record' would, if accepted, go a long way towards transforming certiorari into a discretionary general appeal for error of law upon which the transcript of proceedings and the reasons for the decision could be scoured and analysed in a search for some internal error.[20]

29 It is well settled that a judge has an obligation to provide reasons for judgment.[21] It is 'a normal not universal' incident of the judicial process.[22] The purposes underlying the judicial obligation to provide reasons are as follows:

(a) To enable the appellate court to determine whether the decision of the trial judge contains appealable error;[23]

(b) An adequate statement of reasons provides the foundation for the acceptability of the decision by the parties and the public,[24] so that justice is not only done but it is seen to be done;[25]

(c) To further judicial accountability, guarding against the birth of an unconsidered or impulsive decision;[26] and

(d) It has an educative function in that it enables practitioners, legislators and members of the public to ascertain the basis upon which like cases will probably be decided in the future.[27]

30 The nature and content of a judge's obligation to give reasons depends upon the circumstances of the particular matter.[28] While the reasons need not necessarily be lengthy or elaborate, there are three fundamental elements of a statement of reasons, at least in relation to judgments and orders that are susceptible to appeal, as follows:-

(a) Reference to the relevant evidence: although there is no need to refer to the relevant evidence in detail, especially in circumstances where it is clear that the evidence has been considered. Nevertheless, where certain evidence is important or critical to the proper determination of the matter and is not referred to by the trial judge, an appellate court may infer that the trial judge overlooked the evidence or failed to give consideration to it. Where conflicting evidence of a significant nature is given, the existence of both sets of evidence should be referred to;[29]

(b) The judge should set out any material findings of fact and any conclusions or ultimate findings of fact reached. Where findings of fact are not referred to, an appellate court may infer that the trial judge considered that finding to be immaterial. Where one set of evidence is accepted over a conflicting set of significant evidence, the trial judge should set out his findings as to how he comes to accept the one over the other. It may not be necessary to make findings on every argument or destroy every submission, particularly where the arguments advanced are numerous and of varying significance;[30] and

(c) The judge should provide reasons for making the relevant findings of fact (and conclusions), and reasons in applying the law to the facts found. The reasons or the process of reasoning should be understandable and preferably logical as well.[31]

31 Not everything relevant that a judge does not refer to is to be taken to have been overlooked. But if something which should have been considered is not referred to, and the nature of the decision suggests some error that may have been due to the matter not having been considered as it should have been, the supervisory court may properly draw the inference that the matter has been overlooked.[32]

32 The provision of reasons sufficient to enable the appellate court to understand why the judge reached his or her decision does not mean that every factor that weighed with the judge in appraising the evidence has to be identified and explained. It does require the judge to identify and record those matters that were critical to the decision:

Where the critical decision is one of fact, it may be enough to say that one witness was preferred to another because the one manifestly had a clearer recollection of the material facts or the other gave answers which demonstrated that his recollection could not be relied upon.[33]

33 The obligation to observe these requirements in reasons given in an appeal to the County Court, from which there is no appeal, is diminished. Ta v Thompson[34] was a case such as this, where there was an application for judicial review of a decision of the County Court in an appeal from the Magistrates' Court. Whelan J had proceeded to assess the reasons of the County Court Judge by reference to the usual requirements, but qualified by the nature of the judicial review and the absence of a right of appeal. His Honour noted:

Where there is no right of appeal in relation to factual findings, the requirement for the provision of reasons as to factual findings is less rigorous.[35]

There remains some uncertainty as to the extent of the judicial obligation to give reasons in the absence of a right of appeal.[37]

Nevertheless this was a final decision of the type which attracted the obligation to state reasons, and in order to be meaningful the obligation must at least have extended to a requirement that the court state the grounds of its decision. If this were not done the reasons would not be reasons in any real sense and the purposes identified in Fletcher would be unlikely to be fulfilled.

Further the statement of the grounds of a decision of this type facilitates effective judicial review and the protection of a party's rights to see whether a decision was made in accordance with law.

Conversely, there are good reasons for concluding that the obligation to give reasons did not go as far as that which is imposed where a decision is subject to an appeal by way of rehearing but was limited to that ordinarily imposed when a decision is subject to an appeal on questions of law only.

Most obviously, the very fact that there is no right of appeal from the County Court judge's decision supports this limitation. Secondly, the fact that the proceeding constituted a rehearing of a summary prosecution also tends to support this view. Thirdly, there is no authority requiring the imposition of a higher standard.

For present purposes it may thus be accepted that the County Court judge's obligation extended to identifying the grounds or basis of her decision in the same way as such an obligation is regarded as a necessary corollary to a right of appeal on questions of law.

35 His Honour then reviewed a number of cases in which the High Court and other appellate Courts had considered the extent of the requirement to give reasons in cases where there was an appeal on a question of law, and concluded that Whelan J was correct in his conclusion quoted above. Importantly for present purposes, Osborn JA referred to the requirement where the issue is one of credit, quoting multiple judgments from Soulemezis and saying:

Where a judge's decision turns upon the acceptance or otherwise of a particular witness the judge's reasons for failing to be persuaded by that witness may be capable of no greater explanation than a summary statement. In Soulemezis Mahoney JA said:

The weight which a judge will give to the evidence of a witness will often be not capable of rationalisation beyond the statement: having heard him, I am not satisfied that I should accept what he says.

To similar effect for present purposes, McHugh JA in Soulemezis referred to Brittingham v Williams and said:

In that case the trial judge had given no reasons. However, the Full Court held that 'having regard to the only defence raised' the proper conclusion to be drawn from a judgment for the defendant was that the judge had not accepted the plaintiff's evidence. Where the resolution of the case depends entirely on credibility, it is probably enough that the judge has said that he believed one witness in preference to another; it is not necessary 'for him to go further and say, for example, that the reason was based on demeanour': Connell v Auckland City Council. The position will usually be different if other evidence and probabilities are involved. A superior court, considering the decision of an inferior tribunal, should not be left to speculate from collateral observations as to the basis of a particular finding.[38]

36 Reference was then made to the decision of the High Court in the decision in Douglass v The Queen,[39] which had also been referred to by Whelan J at first instance, who noted:

...the High Court has indicated that whilst McHugh JA's observation [in Soulemezis] might be valid in the context in which it was made, being consideration of the reasons given by a judge in a compensation case, it was not applicable to a criminal case where there was a conflict between the complainant's evidence and evidence given by the defendant. Such an approach would, the High Court held, fail to recognise that the resolution of a criminal case does not depend on whether the evidence of one witness is preferred to another, but rather depends upon whether the evidence taken as a whole proves the elements of the offence beyond reasonable doubt. In a criminal case, even if a judge were not persuaded by a defendant's evidence, and preferred the evidence of the complainant, he or she could not convict unless satisfied that it was not reasonably possible that the defendant's evidence was true.[40]

37 On appeal in Ta v Thompson, Osborn JA distinguished the observations of the High Court in Douglass, saying:

I do not take the decision in Douglass v The Queen[41] to relevantly qualify these observations [the observations of McHugh JA in Soulemezis quoted above]. Douglass was a case in which the Crown bore the onus of proving the elements of the offence beyond reasonable doubt on the whole of the evidence. The present is a case in which the appellant bore the onus of establishing his defence on the balance of probabilities. In turn the judicial review proceeding before Whelan J was relevantly analogous to an appeal on questions of law as arose in Soulemezis. The High Court in Douglass did not reject the correctness of McHugh JA's observations in Soulemezis insofar as they applied to civil proceedings or by analogy to a case such as the present.

The present case turned fundamentally upon an assessment of the credit of the appellant. He could not discharge the onus upon him unless his denial of knowledge of the presence of the drug was accepted as truthful and reliable. The case was put to the judge expressly on this basis.[42]

38 If there is evidence which is uncontradicted, reasonable and inherently probable, and which goes to the core of the case, a failure to refer to the evidence by the judge has been held to constitute an error, as the evidence has either been rejected without any reason being given, or has not been properly considered.[43]

39 Part 4.4 of the Civil Procedure Act 2010 (Vic) sets out the test for summary judgment in s 63: a court may give summary judgment if satisfied that a claim, a defence or a counterclaim or part of the claim, defence or counterclaim, has no real prospect of success.

40 This liberalises the rules governing summary judgment in Victoria, such that it is easier to dispose of unmeritorious claims or defences summarily. The Court of Appeal has stated that the test:

[S]hould be construed as one of whether the respondent to the application for summary judgment has a 'real' as opposed to a 'fanciful' chance of success; that the 'real chance of success' test is to some degree a more liberal test than the 'hopeless' or 'bound to fail' test; and that, as the law is at present understood, the real chance of success test permits of the possibility that there may be cases, yet to be identified, in which it appears that, although the respondent's case is not 'hopeless' or 'bound to fail', it does not have a real prospect of succeeding.[44]

41 The test must be applied according to its own terms and not according to considerations of whether the proceeding is 'hopeless' or 'bound to fail'. To adopt 'an unduly constrained, historical approach to the construction of s 63' would 'subvert the purpose of the provision'.[45] Courts must, however, continue to exercise the power to terminate proceedings summarily with caution. Courts should therefore only exercise the power if it is clear that there is no real question to be tried.[46]

42 Whether a proceeding should be allowed to go to a full hearing on the merits must be determined according to the circumstances of each case.[47]

43 The Originating Motion refers to an error of law on the face of the record by reason of the inadequacy of the reasons given by the County Court Judge. The failure, or inability, of the plaintiff to appear means that I need to approach the consideration of the application by Mr Tonkin with due regard to the submissions that might have been made on behalf of the plaintiff and whether they disclose an argument that has a real prospect of success.

44 For this reason, I have taken the view that I should approach the matter with caution and, notwithstanding:

(a) That the plaintiff has not produced a transcript of the reasons of the Judge; and

(b) That the transcript of the hearing of the appeal, as distinct from the reasons for decision, is not strictly a part of the 'record';

I should listen to the transcript of the whole appeal as it has been produced by the Solicitor for Public Prosecutions, on behalf of Mr Tonkin, and come to a view as to whether there is a ground to conclude that the reasons for decision are inadequate in the context of the hearing of the appeal as a whole.

45 I have listened to the audio recording of the proceedings. There is a minor gap, or so it appeared to me, in the recording of the evidence of Mr Singh. Nevertheless, the reasons for decision are reasonably clear.

46 At the hearing of the County Court appeal, there were two issues identified by Counsel for the plaintiff, the appellant below, and confirmed by Counsel for the prosecution, as follows:

(a) That the Cannabis was discovered by Senior Constable Tonkin in the course of an illegal search bringing into play s 138 of the Evidence Act 2008 (Vic). That evidence should be excluded and, if excluded, there was no evidence to support the charge; and

(b) Accepting that s 5 of the Drugs Act operated so that a person who occupied the premises upon which the Cannabis was found, or used, enjoyed or controlled the premises, is deemed to be in possession of the Cannabis, the evidence of the appellant and Mr Singh established on the balance of probabilities that she had no knowledge of the presence or nature of the Cannabis that was found in the room that she had been sleeping in.

47 Brief submissions were made by Counsel without any extensive reference to the evidence given both by the members of the Police force or by the appellant and Mr Singh.

48 Her Honour stood the matter down and, when she returned, she gave judgment in the following terms:

The prosecution called Senior Constable Kirby Tonkin and Detective Senior Constable Andrew Beaton to give evidence. I am not going into the evidence in any great detail save to say in summary that their evidence was that they attended the appellant's premises in East Bentleigh on 29 June 2011 to speak to a male resident about a driving offence. The appellant opened the door and they identified themselves as Police Officers. The appellant gave them permission to enter the premises and upon entering they smelt cannabis. Senior Constable Tonkin spoke to the appellant about this and followed her into the bedroom where he observed a bong on the table and green vegetable matter on the bedside table. Detective Senior Constable Beaton followed him into the appellant's bedroom. The appellant had a conversation with Senior Constable Tonkin during which she picked up the green vegetable matter and threw it at him and it landed on his diary. After this occurred the appellant was given her rights and attended at the Police station for an interview which was in essence a no comment record of interview.

The appellant herself gave evidence and she called a tenant of hers, Mr Singh. The case for the appellant was in essence that if the Police had been invited to enter the premises it was only into the hallway and not into her bedroom. The appellant denied that Senior Constable Tonkin observed the green vegetable matter on her bedside table. She gave evidence that he conducted a search. He found something and showed it to her with basically, she indicated, a clenched fist and he placed it on his diary for her to have a look at. The appellant denied throwing the green vegetable matter at Senior Constable Tonkin. She insisted that she had no prior knowledge of it being in her bedroom. She gave evidence that earlier in the morning Mr Singh had entered her bedroom on a number of occasions and on one of these occasions he had left a small piece of paper on the bedside table. She was under her doona and she believed it was a small piece of paper simply on the basis that on previous occasions he had sought her advice in relation to import and export documents to do with some sort of business. Mr Singh supported the appellant's evidence to the extent that he gave evidence of finding a small piece of paper in the bathroom. As the house rule was that lost property was to be handed to the appellant he took it into her bedroom before he left for work around 6.30 in the morning. She was under the doona and told him to leave it on the table which he did.

In his submissions after the evidence was given counsel for the defendant primarily relied on two grounds in relation to this appeal. The first ground was that there had been no permission given to the Police to enter the appellant's bedroom and to conduct a search, in other words, to put it simply, they did not have a search warrant and it was an illegal search.

The second ground for the appeal was, it was submitted, that I could be satisfied on the balance of probabilities that the appellant had no prior knowledge of and no intention with respect to the cannabis that was found in her bedroom.

I have carefully considered all the evidence in this case and I have referred to it in summary. It has been accepted by the defendant in this case that due to the deeming provisions and due to the fact that the appellant is the owner and occupier of the premises that the onus is on the appellant to satisfy me on the balance of probabilities that she did not intend to have the drug in her custody or under her control. As I understand the appellant's case she had no knowledge of the drug. It follows that she did not intend to have it in her custody or in her control. So the real question for me is whether I can infer from all the evidence in this case that the appellant did not have any knowledge of the cannabis found in the room and that she therefore did not intend to have it in her custody or control.

In thinking carefully about the evidence, a number of matters caused me some concern. One was, I consider it improbable that Mr Singh would enter the appellant's bedroom with a piece of paper he found in the bathroom at 6.30 in the morning. If Mr Singh had given evidence that he had found a substance which he had looked at closely and he considered it to be a drug of some sort or a precious item such as a gold ring or a necklace or something of that fashion I can understand why he might have gone into her bedroom at such an early hour. But I find it perplexing as to why he would go into the appellant's bedroom at such an early hour with what he said was a piece of paper.

I also consider it implausible that the appellant, who was sleeping in that room, that she would not have noticed a bong sitting on the table in the room. There is no evidence of there being any paper over the green vegetable matter. The evidence is that it was on the bedside table. I consider it implausible that she would not have noticed green vegetable matter on her bedside table when she went to bed that night. It is really in essence because of these reasons that I find it a case where I could not be satisfied on the balance of probabilities that the appellant did not have knowledge of the drug and an intention to exercise control over it and have it in her custody.

With respect to the submission of the defence that the evidence was obtained illegally, s 138 of the Evidence Act sets out the sections [sic] which must be taken into account. Sub-section (3) sets out that the Court must take into account, amongst other matters, the probative value of the evidence and the importance of the evidence in the proceedings. I am satisfied that the Police officers on this occasion did not actually conduct a search but rather stumbled upon the marijuana or cannabis when they entered the room.

But even if I was wrong about this, and they had entered the room and conducted a search, I consider that the probative value of the evidence and the importance of the evidence to the case is such that I would have allowed the evidence in all the circumstances. I would not have exercised my discretion to exclude the evidence in all the circumstances of this case.

So basically I have said that the appellant has failed to satisfy me on the balance of probabilities to the requisite extent. I am satisfied beyond reasonable doubt that the prosecution has made out the elements of the offence in relation to it firstly being cannabis and of it being in the custody and control of the accused.

49 Mr Castle, solicitor, who appeared for Mr Tonkin, pointed to the way the ground of appeal was expressed and suggested that it was confined to an inadequacy of the reasons 'to enable the plaintiff to understand the Judge's reasons for finding the charge proved'. He submitted that the test is an objective test, not a subjective test, and the ground was not a proper ground of review.

50 It is undoubtedly correct that the test to be applied to determine whether the reasons for decision are adequate is an objective test, as the authorities to which I have referred demonstrate. But in considering the plaintiff's application, and in her absence, I consider I should not confine the ground of review to her understanding. I consider that if this point were raised with the plaintiff's legal representative he or she would contend that it was not intended to be so confined; but intended to identify one of the rationales for the giving of reasons, namely that an adequate statement of reasons provides the foundation for the acceptability of the decision by the parties and the public. Clearly, the statement of the ground of review focuses on the acceptability of the reasons to her. The acceptability of the reasons is nevertheless judged objectively by reference to the nature of the case (here a charge of possession of a drug of dependence, Cannabis), the evidence adduced for and against the charge, the evidentiary burdens - which in this case are important because of the operation of s 5 of the Act - and the issues in dispute as identified by Counsel representing the parties.

(a) The County Court was deciding, by way of hearing de novo, a summary prosecution;

(b) There is no further right of appeal from the County Court in its appellate jurisdiction, as I have previously noted; and

(c) As Osborn JA noted in Ta v Thompson,[48] the proceedings were unusual in the sense that the prosecution case was sufficient to place an evidentiary onus upon the plaintiff to establish, on the balance of probabilities, whether she did not know of the presence of the Cannabis in her bedroom.

52 The starting point in an assessment of the reasons given by the learned Judge in this case is an understanding of the issues that Counsel for the plaintiff and the prosecutor identified as the issues for decision and, therefore, the issues relevant to be addressed in the reasons. It was common ground at the hearing in the County Court that there were two issues (as identified above at paragraph 46). The affidavits of both solicitors confirm those issues. After listening to the evidence given at the hearing, it is clear they were the only two issues. They were, in short form, whether there was an unlawful search that unearthed the Cannabis, and whether the plaintiff established on the balance of probabilities that she was not in possession of the Cannabis.

53 It might have been submitted on behalf of the plaintiff that the Judge failed to refer to all of the evidence adduced at the hearing on this issue. There was certainly considerable evidence given by the plaintiff about the circumstances in which the police entered her premises. It is clear that her Honour did not accept some of that evidence, even though it is not referred to. It mainly concerned the entry of the constables into her bedroom (or the room she was using as a bedroom at the time, as she gave evidence that she had a penthouse at the rear of the premises and only used the room when she was expecting an ambulance to collect her in the morning). The evidence of the plaintiff, including that adduced in cross-examination, included a reference in her record of interview where she agreed that she had invited the constables into her property but, she said, only into the front hallway and not into her bedroom.[49] Her evidence-in-chief in the County Court was not entirely consistent with this previous admission, as she seemed to say that Mr Tonkin forced his way through the front door.

54 So far as this evidence concerned the contention that Mr Tonkin and Mr Beaton had either entered her house against her wishes, or her bedroom, it was not evidence that was uncontradicted, nor was it reasonable and inherently probable. The law does not require that the Judge make an express finding in respect of every fact leading to, or relevant to, her final conclusion of fact.[50] In the circumstances here, the learned Judge was not obliged to recite evidence she had heard only a short time before. The reasons of the learned Judge make it tolerably clear that she accepted the evidence of Mr Tonkin and Mr Beaton as to the circumstances in which he entered the bedroom and noticed the 'bong' and the Cannabis. For these reasons, in my view, there is no error of law disclosed by the fact that her Honour did not refer to some evidence.

55 In addition, it is relevant that her Honour considered the admissibility of the evidence of the presence of the Cannabis in the plaintiff's bedroom on the footing that it had been obtained in consequence of an illegal search, and in her brief reasons properly explained why that evidence should be admitted regardless.

56 It follows that there is no arguable case that has any real prospect of success on this issue, and thus there is no question to be tried.

57 The plaintiff bore the onus of establishing her defence on the balance of probabilities. This judicial review proceeding is analogous to an appeal on a question of law as arose in Soulemezis. The present case turned fundamentally upon an assessment of the credit of the plaintiff. She could not discharge the onus upon her unless her denial of knowledge of the presence of the drug was accepted as truthful and reliable.

58 The reasons given by the Judge as to the evidence given by and on behalf of the plaintiff as to her knowledge of the presence of the Cannabis in her room went considerably further than the reasons given by the primary Judge in Ta v Thompson.[51] That was a case in which the reasons went little further than that she did not accept the evidence of Mr Ta.

59 In this case, the reasons do refer to the evidence given by the plaintiff and Mr Singh as to how the Cannabis came to be in her room without her knowledge. Her Honour deals with the plausibility of that evidence in some detail. Not all the evidence is referred to, as her Honour clearly noted, but only a summary of it. But there is sufficient to show that she considered carefully the probability of that evidence being true, and she revealed the factors that led her Honour to the conclusion that she was not satisfied on the balance of probabilities that the plaintiff did not have knowledge of the Cannabis in her room on her bedside table.

60 The location in which the Cannabis was found, on a bedside table in the room in which the plaintiff had earlier been sleeping, was such that a credible explanation for its presence there was necessary. The plaintiff's explanation for the presence of the Cannabis was plainly implausible, as the Judge said. Her Honour saw and heard her give it. She dealt with it in a number of ways. First, by assessing it according to whether it made sense, concluding that it did not, that is, it was implausible. Secondly, she considered that it was equally implausible that the plaintiff would not have noticed a 'bong', that is a device for smoking Cannabis, sitting on the table in the bedroom. She did not say, because it was obvious, that the presence of the 'bong' was significant as it is a means for smoking Cannabis. Its presence was at least consistent with the presence of the Cannabis. There was, I should add, no dispute that the 'bong' was found in her bedroom by Constable Tonkin when he first entered the room. It was also not mentioned by the Judge, but it was equally undisputed, that there was uncontradicted evidence from Mr Tonkin and Mr Beaton that there was a smell of marijuana smoke when they entered the house. The Judge did not need to refer to the facts that had been given in evidence only a short time earlier.

61 When these matters are considered together, the reasons given by the Judge in the County Court go further and provide more detail in relation to the Judge's reasoning and rejection of the plaintiff's evidence than was the case in Ta v Thompson. I consider that her Honour's reasons are clearly sufficient, and there is no basis to conclude that there is any real prospect of a finding that the reasons were inadequate.

62 For the reasons given above, I conclude that there is no real prospect of the plaintiff succeeding in this proceeding.

(b) the plaintiff shall pay the defendants' costs of the proceeding.

[1] See, eg, R v Australian Broadcasting Tribunal, ex parte Hardiman & Ors [1980] HCA 13; (1980) 144 CLR 13.

[2] The Exhibits to that affidavit were not, however, filed or provided to the Court.

[4] See affidavit of Chester Metcalfe, [2].

[6] Affidavit of Kentaro Michael Maddess affirmed 28 January 2015, [12].

[7] Although the Statements in their entirety were not admissible because of s 86 of the Evidence Act 2008.

[8] Affidavit of Kentaro Michael Maddess affirmed 28 January 2015,[14], Exhibits KM-2 and KM-3.

[9] Affidavit of Chester Metcalfe, [3]; Affidavit of Kentaro Michael Maddess affirmed 28 January 2015, [15].

[10] Affidavit of Chester Metcalfe, [6] and [7].

[11] Affidavit of Chester Metcalfe, [4] and [9].

[12] Order 17 November 2014, recorded in 'Other Matters'; Affidavit of Kentaro Michael Maddess affirmed 28 January 2015, [28]-[30].

[13] [2007] VSCA 19.

[15] Ta v Thompson [2012] VSC 446 [30], footnote 20.

[16] [1995] HCA 58; (1994) 184 CLR 163, 175-6.

[17] Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43, [26]; Ta v Thompson [2013] VSCA 344, [21].

[18] Massoud [1989] VicRp 2; [1989] VR 8, 20; citing Pettitt v Dunkley [1971] 1 NSWLR 376, Kerr v Colley [2002] VSC 209, [16]-[18], Hunter v TAC & Avalanche [2005] VSCA 1, [21] ('Hunter'); Minister for Immigration v Yusuf [2001] HCA 30; (2001) 206 CLR 323, 388-9; Ta v Thompson [2012] VSC 446, [24].

[19] Bloomfield v Haralabakos & Anor [2007] VSC 279, [26] ('Bloomfield'); Ta v Thompson [2012] VSC 446, [24].

[20] Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163, 181 (Brennan, Deane, Toohey, Gaudron and McHugh JJ) (citations omitted); see also Ta v Thompson & Amor [2013] VSCA 344, [24] (Osborn JA, with whom Beach JA agreed).

[21] Fletcher Constructions Australia Limited v Lines Macfarlane & Marshall Pty Ltd (No 2) [2002] VSCA 189; (2002) 6 VR 1, [99]; De Iacovo v Lacanale [1957] VicRp 78; [1957] VR 553, 557-9; Pettitt v Dunkley [1971] 1 NSWLR 376, 382 and 387-8; Sun Alliance Insurance Ltd v Massoud [1989] VicRp 2; [1989] VR 8, 18 (Gray J); Beale v Government Insurance Office of New South Wales (1977) 48 NSWLR 430, 441 (Meagher JA); Roy Morgan Research Centre Pty Ltd v Commissioner of State Revenue (Vic) [2001] HCA 49; (2001) 207 CLR 72, 83-4 (Gaudron, Gummow, Hayne and Callinan JJ), 85-7 (Kirby J).

[22] Public Service Board of New South Wales v Osmond (1986) 159 CLR 656, 666-7; Sun Alliance Insurance Ltd v Massoud, 19; Beale v Government Insurance Office of NSW, 441; R v Arnold [1998] VSCA 34; [1999] 1 VR 179, 182 (Phillips JA); see also Perkins v County Court of Victoria [2000] VSCA 171; (2000) 2 VR 246.

[23] Fletcher Construction v Lines Macfarlane (No 2), [100]; Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247, 279 (McHugh JA).

[25] 'The Writing of Judgments' (1948) 26 Canadian Bar Review 491 (Lord MacMillan).

[28] Fletcher Constructions v Lines Macfarlane (No 2), [101].

[31] Ibid; see also Sun Alliance, 18 (per Gray J) and Yendall v Smith Mitchell & Co Ltd [1953] VicLawRp 53; [1953] VLR 369, 379 (Sholl J).

[32] Yendall v Smith Mitchell & Co Ltd, 379 (Sholl J), see also Mifsud v Campbell (1991) 21 NSWLR 725, 728 (Samuels JA).

[33] English v Emery Reimbold & Strick Ltd [2002] EWCA Civ 605; [2002] 1 WLR 2409, 2417-9 (Lord Phillips).

[34] [2013] VSCA 344.

[35] Perkins [2000] VSCA 171; (2000) 2 VR 246, 273, Insurance Manufacturers of Australia Pty Ltd v Vandermeer [2007] VSC 28 [15], Cyndon Chemicals v Ultrawash Holdings [2007] VSC 506 [9], BR v VOCAT [2009] VSC 152 [26].

[36] Ta v Thompson [2013] VSCA 344, [30]-[36].

[37] Perkins v County Court of Victoria [2000] VSCA 171; (2000) 2 VR 246, [55]-[56] (Buchanan JA).

[38] Ta v Thompson [2013] VSCA 344 [52]-[53] (citations omitted, emphasis in original).

[39] [2012] HCA 34.

[40] Ta v Thompson [2012] VSC 446 [32].

[41] [2012] HCA 34.

[42] Ta v Thompson [2013] VSCA 344, [54]-[55] (emphasis added).

[43] Read v Nerey Nominees Pty Ltd [1979] VicRp 6; [1979] VR 47, 51-2 ('Read'); Massoud [1989] VicRp 2; [1989] VR 8; Ta v Thompson [2012] VSC 446 [34].

[44] Lysaght Building Solutions Pty Ltd v Blanalko Pty Ltd [2013] VSCA 158 [29] (Warren CJ and Nettle JA, with whom Neave JA agreed).

[45] Ibid [25] (Warren CJ and Nettle JA, with whom Neave JA agreed).

[46] Ibid [35] (Warren CJ and Nettle JA, with whom Neave JA agreed).

[47] Barber v State of Victoria [2012] VSC 554 [15].

[48] Ta v Thompson [2013] VSCA 344 [30].

[49] Exhibit KM-4 to the Affidavit of Kentaro Michael Maddess, sworn 28 January 2015, 4.

[50] Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247, 271

[51] See, eg, [2012] VSC 446 [19].