Quick v Creanor; Taylor v Wilkins [2015] VSCA 273

2 The judge is about to hear appeals in two separate matters, the facts of which need only be briefly mentioned. In the first case, Ms Quick was charged, on summons, with one charge of driving in a manner dangerous causing serious injury, one charge of driving in a manner dangerous, one charge of careless driving, and one charge of failing to stop at a stop sign or stop line. Following a contested hearing in the Magistrates' Court, Ms Quick was found guilty of the principal charge, of dangerous driving causing serious injury. The other three charges, which were alternatives to that charge, were each struck out. Ms Quick appealed to the County Court, pursuant to s 254 of the CPA, against her conviction and sentence.

3 In the second case, Ms Taylor was charged with some 11 charges of contravention of a personal safety intervention order, and one charge of stalking. At the Magistrates' Court, Ms Taylor pleaded guilty to one rolled up charge, covering different contraventions on different days, which had originally founded the individual charges that had been brought against her. She also pleaded guilty to one charge of stalking. The individual charges, of contravening a personal safety intervention order, were each struck out. Ms Taylor was sentenced to an aggregate sentence, on the two charges, of 180 days' imprisonment, the whole of which, save for 86 days, was suspended. A declaration was made pursuant to s 18 of the Sentencing Act 1991 that 86 days was reckoned as served by way of pre-sentence detention. Ms Taylor filed a notice of appeal against conviction and sentence pursuant to s 254 of the CPA.

4 Each respondent contends that the only charges which can be determined on the appeals are those upon which she was convicted and sentenced. The judge was satisfied that it was in the interests of justice to reserve the following three questions of law for this Court, pursuant to s 302A of the CPA:

Question 1

In the hearing of an 'Appeal by Offender', per Division 1 of Part 6.1 of the Criminal Procedure Act 2009, does s 256(2)(c) of that Act give the County Court the power to reinstate charges which had been struck out by the Magistrates' Court in the course of the original criminal proceedings?

Question 2

If 'yes' to Question 1, what principles or matters should the County Court judge take into account in considering whether to reinstate a charge?

Question 3

In the alternative, does the procedure at the commencement of a re-hearing under s 256 of the Criminal Procedure Act 2009 encompass setting aside orders striking out charges in the original proceedings?

5 Counsel for the Director submitted that the answer to question 1, alternatively to question 3, should be 'yes'.

6 In respect of question 1, counsel commenced with the proposition that an order striking out a charge was interlocutory in nature and not a final order, so that the Magistrates' Court had an inherent jurisdiction to reinstate charges which it has struck out.[1] The respondents concede that this is so. Section 256(2)(c) of the CPA provides that the County Court, on the hearing of an appeal under s 254, may exercise any power which the Magistrates' Court exercised 'or could have exercised'. Thus, the Director submitted, the County Court has the same power to reinstate the charges as the magistrate would have had.

7 Counsel accepted that each respondent's right to appeal was enlivened by her conviction in the Magistrates' Court (s 254). In each case, it was said, the charges which were struck out ('the relevant charges') were so closely associated with the charge upon which the respondent was convicted that, once the conviction was set aside, the basis on which the relevant charges had been struck out was removed. In each case, the relevant charges had been based on the same facts as those upon which the particular respondent had been convicted. Thus, there would be no injustice in reinstating the relevant charges.

8 In respect of question 2, counsel for the Director invited the court to note that the exercise of the power to reinstate charges would be subject to considerations such as abuse of process, and the principles of autrefois convict. Other considerations might include whether the charge was triable summarily, and whether the charge had sufficient prospects of success.

9 In respect of question 3, counsel for the Director submitted that the effect of the commencement of an appeal under s 254 of the CPA was that the orders of the magistrate were set aside, either by specific order under s 256(2)(a) of the Act, or by way of 'deeming'.[2] Thus, it was said, as the relevant charges were struck out as a consequence of a conviction in the Magistrates' Court, once that conviction was set aside the consequential orders (including those striking out the relevant charges) were also set aside.

10 In response, it was submitted on behalf of the respondents that the answers to questions 1 and 3 should each be 'no'. It was submitted that the right of appeal provided by s 254 was a right belonging solely to the person convicted. The relevant charges were not the subject of the appeal which - by force of s 254 - was confined to the charge of which the person bringing the appeal had been convicted. Accordingly, the relevant charges were not before the County Court. While a Magistrates' Court had inherent power to reinstate charges struck out of its list, the relevant charges had never been in the County Court's list in its appellate jurisdiction. Thus, the County Court did not have power, under s 256(2)(c) of the CPA, to reinstate those charges.

11 Further, it was said, the word 'sentence' was defined in s 3 of the Act to include both the conviction and sentence of a person. Section 256(2)(a) required the County Court, on appeal, to set aside the 'sentence' of the Magistrates' Court. It was submitted that 'no amount of torture of the language' could extend that word to encompass an interlocutory order striking out a charge. Because the order striking out a charge was not a 'sentence', it was not amenable to being set aside under s 256(2)(a) of the Act.

12 The respondents further submitted that, if the answer to question 1 was 'yes', then the jurisdiction of the County Court to reinstate charges must be confined to the most 'extreme and clear examples of abuse of the process of the court'.

The Criminal Procedure Act 2009

13 The questions contained in the case stated are to be answered by reference to s 254 and s 256(1) and (2) of the CPA. They provide:

254 Right of appeal

A person convicted of an offence by the Magistrates' Court in a criminal proceeding conducted in accordance with Part 3.3 may appeal to the County Court against -

(a) the conviction and sentence imposed by the court; or

(b) sentence alone.

Note

See the definitions of conviction and sentence in section 3.

...

256 Determination of appeal

(1) An appeal under section 254 must be conducted as a rehearing and the appellant is not bound by the plea entered in the Magistrates' Court.

(2) On the hearing of an appeal under section 254, the County Court -

(a) must set aside the sentence of the Magistrates' Court; and

(b) may impose any sentence which the County Court considers appropriate and which the Magistrates' Court imposed or could have imposed; and

(c) may exercise any power which the Magistrates' Court exercised or could have exercised.

14 Question 1 asks whether s 256(2)(c) of the CPA empowers the County Court to reinstate charges struck out by the Magistrates' Court in the course of the original criminal proceedings.

15 The status of charges that have been before a Magistrates' Court, and struck out without adjudication, is well settled. In R v McGowan & Anor,[3] Kaye J held that a Magistrates' Court had the inherent power to set aside previous orders striking out an information filed in the Court. In reaching that conclusion, his Honour stated:

an order striking out an information does not put an end to the proceedings. It is not a curial determination of the charge alleged; it is no more than a direction to remove the information from the list of matters for hearing and determination by the Court.[4]

16 That characterisation of such an order was adopted by this Court in Director of Public Prosecutions v Moore,[5] where it was held that the Supreme Court, on appeal from the Magistrates' Court, did not have jurisdiction to entertain an appeal from an order of the Magistrates' Court striking out a charge filed in the court. Batt JA (with whom Chernov and Eames JJA agreed), citing R v McGowan, stated:

The general principle is that what has been struck out, whether it be an information, charge, summons, proceeding or appeal, may be restored or reinstated, because the legal effect of striking out is merely to take the subject matter out of the list. As the subject matter is capable of being brought again, the order striking it out is not final.[6]

17 Thus it is clear that, in each of the two criminal proceedings before the Magistrates' Court, that court had power (subject to considerations such as abuse of process) to reinstate each of the relevant charges. As noted earlier, s 256(2)(c) of the CPA provides that, on the hearing of an appeal under s 254, the County Court may exercise any power that the Magistrates' Court could have exercised.

18 Plainly enough, that is a provision of very broad scope, intended to place the County Court in the same position as the Magistrates' Court and with complete control over the criminal proceedings before it.[7] It follows that, on an appeal from the Magistrates' Court, the County Court can exercise the power of reinstatement just as the Magistrates' Court could have done.

19 This conclusion is reinforced by the nature of an appeal to the County Court. Section 256(1) of the CPA provides that an appeal under s 254 must be conducted 'as a re-hearing'. That provision, and its predecessors in the Magistrates' Court Act and the Justices Act, have long been understood as requiring the County Court to conduct a hearing de novo. In other words, the Court starts afresh. Thus, for example, amendments made to a charge by the Magistrates' Court are of no effect before the County Court. As Hargrave J correctly stated in Candolim Pty Ltd v Garrett,[8] the effect of ss 85 and 86 of the Magistrates' Court Act 1971 (which are relevantly the same as s 256(1) and s 256(2)(a) of the CPA), is '... that everything which happened in the Magistrates' Court is to be disregarded on the hearing of the County Court appeal'.[9]

20 That aspect of the process of appeal, from the Magistrates' Court to the County Court, was made abundantly plain by Beach J in Helfenbaum v Sattler & Anor,[10] in which his Honour said:

I think that the correct view of the matter is that when the hearing of the appeal commences, and it must be borne in mind that it is a hearing 'de novo', the order of the Magistrates' Court should be either formally set aside or at the least be deemed to be set aside. I say that for the reason that as the hearing is a hearing de novo and regardless of the outcome the order the Magistrates' Court must be set aside there should no longer be any order on foot in respect of the matter at the time the hearing of the appeal commences before the County Court.[11]

21 The charges which brought each of the two respondents before the Magistrates' Court were those which had been filed with that court. In accordance with the above principles, on appeal to the County Court everything that happened in the Magistrates' Court - including the making of orders striking out charges - is to be disregarded. That Court's orders must be 'formally set aside ... or deemed to be set aside'.

22 Section 256(2)(a) requires the County Court to 'set aside the sentence' (which is defined to include the conviction: s 3). It may be accepted that paragraph (a) does not extend to the setting aside of orders striking out charges, but that result is achieved by the exercise of the power of reinstatement under s 256(2)(c).

23 This analysis accords with the defining characteristic of an appeal from the Magistrates' Court to the County Court as a hearing de novo. A construction of s 256 (2)(c) which precluded the reinstatement of charges struck out by the Magistrates' Court would be inconsistent with the nature of the appeal.

24 Moreover, the narrow construction of s 256(2)(c) of the Act for which the respondents contend would produce anomalous consequences, which could not have been intended by Parliament. For a long time it has been a commonplace for a series of charges to be laid in the one summons, a number of which constitute alternative charges to the principal charge. Where a defendant is convicted of the principal charge, it is necessary to make appropriate orders disposing of the lesser alternatives. That is achieved by making an order striking out those alternative charges, in that sense 'clearing' the summons.

25 If, on appeal, the County Court did not have the power to hear the charges that had been struck out in the Magistrates' Court, that court would be in the anomalous position of not having available to it the alternative charges that were available on the hearing before the Magistrates' Court. It is clear that s 256(2)(c) of the CPA was intended to enable the County Court on appeal to do full justice to both sides. The narrow construction of that provision contended for by the respondents would be directly contrary to that legislative intention.

26 For these reasons, we consider that s 256(2)(c) of the CPA does give the County Court the power to reinstate charges which had been struck out by the Magistrates' Court in the course of the original criminal proceedings before that court. It follows that the answer to question 1 should be 'yes'.

27 Question 2 is expressed in quite broad terms. The County Court judge will naturally be guided by the justice of the case in determining whether it is appropriate to reinstate a charge. It is not possible to state an exhaustive list of the considerations which the judge should take into account in a particular case.

28 Accordingly, we provide the following answers to the questions contained in the case stated:

Question 1

'Yes'.

Question 2

'The County Court judge must be guided by the justice of the individual case'.

Question 3

Not applicable.

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[1] DPP v Moore [2003] VSCA 90; (2003) 6 VR 430, 437 [20] (Batt JA); R v McGowan [1984] VicRp 78; [1984] VR 1000, 1002-3 (Kaye J).

[2] Walters v Magistrates' Court of Victoria & Anor [2015] VSC 88, [116] (Zammit J); Candolim Pty Ltd & Ors v Garrett & Anor [2005] VSC 270, [30]-[33] (Hargrave J).

[3] [1984] VicRp 78; [1984] VR 1000.

[5] [2003] VSCA 90; (2003) 6 VR 430.

[7] An equivalent provision equips VCAT in its merits review jurisdiction with all of the powers of the primary decision-maker: VCAT Act s 51(1).

[8] [2005] VSC 270.

[9] Ibid, [30]; Neill v County Court of Victoria (2003) 40 MVR 255, [19] (Redlich J).

[10] [1999] VSC 548; [1999] 3 VR 583.

[11] Ibid, 587; see also DPP v Shoan [2007] VSCA 220; (2007) 176 A Crim R 457, [20] (Buchanan JA).