Plaintiff v First Defendant

2 An audio recording of a hearing held on 8 March 2017 before Magistrate Kumar sitting in the Melbourne Magistrates' Court after hours bail court was exhibited to Ms Balmer's affidavit. No transcript of the hearing was made available to the Court or the defendants. During the hearing, counsel for the plaintiff referred to another audio recording of a hearing before Magistrate Robertson on 8 March 2017 at the Sunshine Magistrates' Court. This recording was not exhibited to Ms Balmer's affidavit nor was there a transcript of the audio available to the defendant or the Court at the hearing.

3 The defendants were served with the relevant documents shortly before the application was heard and had not had sufficient time to obtain instructions.

4 Nevertheless, both the plaintiff's counsel and the solicitor representing the defendants made submissions and the hearing was adjourned to enable the transcript of the audios to be produced and for the defendants to obtain instructions. The Court also requested short written submissions to be provided by the parties by the end of 13 March 2017. The plaintiff's written submissions were provided. The defendants informed the Court that their written submissions would be provided today. Those submissions were forwarded at lunchtime.

5 There is urgency to the application given that the plaintiff remains in custody.

6 On 20 February 2017, the plaintiff was arrested and charged with the criminal offence of unlicensed driving. The informant on this charge was Mr Gary Wayne Watson of the Collision Investigation Unit (CIU)-Wyndham ('the Watson matter'). Previously, the plaintiff had been at liberty: he was on bail for a matter where the informant was Mullins and on summons for other matters.

7 The plaintiff had been remanded in custody on the Watson matter at the Heidelberg Police Station police cells. He was remanded to appear on 8 March 2017 at Sunshine Magistrates' Court. A gaol order was issued mandating the police to bring the plaintiff to Sunshine Magistrates' Court.

8 In contravention of the remand warrant, the plaintiff was not transported to Sunshine Magistrates' Court on 8 March 2017 by the Heidelberg police and arrangements were not made for him to appear via video link.

9 The Watson matter was called on at 10.30am on 8 March 2017 and was heard by Magistrate Robertson, in addition to three other matters for various driving offences committed between 9 May 2016 and 24 September 2016.

10 Ms J Poole, solicitor for the plaintiff, requested that all of the matters be adjourned to 28 March 2017. Ms Poole also advised the Magistrate that the matter on which the plaintiff was remanded was the Watson matter. The transcript of the hearing before Magistrate Robertson on 8 March 2017 records that the police prosecutor did not oppose the adjournment. The transcript also records that Magistrate Robertson went to some lengths to ensure that the police prosecutor was aware that the plaintiff was only remanded in custody until that day in the Watson matter and that the only application before the Court was for an adjournment. The police prosecutor then tried to apply to have the plaintiff's bail revoked in the plaintiff's other matters. Magistrate Robertson pointed out to the police prosecutor that the plaintiff was not in court and had not consented to any other application.

... you might have missed that I am adjourning it I am not remanding him ... I am putting you on notice that that is my intention at this time subject to any further submissions, that he is not here, there is no potential for him to be brought here, and it is an application for an adjournment ... The issue is that he is remanded on one of these matters ... which appears to be the only thing that is holding him in custody ... how can I, or why should I remand a person who has not been brought before the court pursuant to a warrant issued by this court which allowed him to be held.

12 Magistrate Robertson confirmed with the police prosecutor that she was 'simply' adjourning the matters.

13 After this hearing the police did not release the plaintiff from custody. At around 7.30pm on 8 March 2017, the police brought the plaintiff before Magistrate Kumar sitting at the 'night court' at Melbourne Magistrates' Court. The application before Magistrate Kumar was to revoke the plaintiff's bail on a separate matter where the informant was Mullins. The police officer instead sought to remand the plaintiff pursuant to s 12 of the Bail Act 1977. That application failed and the police then sought revocation of the plaintiff's bail on the Mullins matter. This also failed. Notwithstanding that no application was made by the police or the plaintiff for an abridgement, Magistrate Kumar decided to abridge the time to bring the Watson matter before him. This was done in circumstances where the plaintiff was unrepresented and no notice of this was given to him and his consent was not given to this course. Magistrate Kumar then adjourned the Watson matter to the following day and purported to make an order remanding the plaintiff in custody.

14 The following day, Magistrate Bazzani adjourned the Watson matter and further remanded the plaintiff in custody.

15 In my view, the focus of the plaintiff's application must be the hearing before Magistrate Robertson on the morning of 8 March 2017. It was for that hearing that the plaintiff was remanded in custody to appear on 8 March 2017 at Sunshine Magistrates' Court.

16 The transcript of the plaintiff's hearing shows that Magistrate Robertson ensured it was made clear to the police prosecutor that:

(a) the remand warrant in the Watson matter was the only basis on which the plaintiff was being held in custody and it had a return date of that day, 8 March 2017;

(b) the only application before Magistrate Robertson was an application for adjournment of the plaintiff's matters, including the Watson matter;

(c) Magistrate Robertson doubted she had any power to hear an application made by the police prosecutor in court to revoke bail in the plaintiff's other matters, given his absence from the court and the lack of consent to such an application;

(d) Magistrate Robertson intended only to make orders with regards to the adjournment of the plaintiff's matters, including the Watson matter;

(e) Magistrate Robertson sought the consent of the police prosecutor for all of the plaintiff's matters to be adjourned, which was given twice by the police prosecutor; and

(f) Magistrate Robertson made orders to adjourn all four matters, including the Watson matter, to 28 March 2017.

17 The transcript before Magistrate Robertson also makes it clear that the remand warrant of the plaintiff expired on the hearing of the Watson matter. Magistrate Robertson refused to make a further order in respect of the remand of the plaintiff. At that time, there was no lawful basis upon which to keep the plaintiff in custody. To the extent that the defendant relies on the remand warrant issued by Magistrate Kumar in the evening of the same day, the validity of that warrant is questionable in the unusual circumstances of its creation.

18 I am satisfied that the actions of police in continuing to hold the plaintiff in custody after his hearing before Magistrate Robertson at approximately 10.35am on 8 March 2017 was unlawful. It follows that the transport of the plaintiff by the police to the Melbourne Magistrates' Court night court for the purposes of having the Watson matter effectively re-heard was also unlawful.

19 Accordingly, pursuant to r 57.03(1)(b) of the Supreme Court (General Civil Procedure) Rules 2015, I will order that the plaintiff be released from custody immediately pending the further hearing of his charges on 28 March 2017 in accordance with the orders made by Magistrate Robertson on 8 March 2017. Otherwise, this proceeding will be adjourned to the Judge in charge of the Judicial Review and Appeals List on 22 March 2017 at 9.30am.