West v Creasey [2000] VSC 5

Supreme Court of Victoria|2000-01-18|Before: BEACH, J.

This is the return of an originating motion filed in the court by the plaintiff Terrence Noel West whereby the plaintiff seeks the following relief or remedy:

"1. A declaration that the part of the order of the second defendant at the County Court at Melbourne on the 13th September 1999 wherein the plaintiff was convicted of each offence and was sentenced to pay the same aggregate fine of $800 and $53 statutory costs and suspended from driving on count 1 for 2 months; suspended from driving on count 2 for 9 months; and suspended from driving on count 3 for four months; is invalid. 2. A declaration that the part of the order of the second defendant of the County Court at Melbourne on the 13th September 1999 wherein the plaintiff was denied leave to abandon the appeal was invalid. 3. Relief by an order in the nature of certiorari to quash that part of the order referred to in paragraph 1 herein. 4. Alternatively to paragraph 3 herein relief in the nature of certiorari to quash that part of the order referred to in paragraph 2 herein. 5. Such further or other relief as this Honourable Court thinks fit."

The first defendant to the proceeding is a police officer who was the informant in respect of three charges brought against the plaintiff in respect of a road traffic accident in which he had been involved on 13 May 1998. The charges were failing to give way, failing to stop after an accident, and failing to exchange names and addresses after an accident. The second-named defendant is a Judge of the County Court of Victoria.

The three charges came before the Magistrates' Court at Ringwood on 29 June 1999. The plaintiff did not attend the hearing but was represented by counsel who pleaded guilty to the charges on his behalf.

The magistrate proceeded to record a conviction in respect of each charge. The plaintiff was fined the sum of $800 in respect of the charge of failing to give way and his licence to drive a motor vehicle was suspended for two months. In respect of the other two charges, the plaintiff's licence was suspended for a period of four months on each charge, making a total effective suspension of four months.

On 1 July 1999 the plaintiff filed a notice of appeal in respect of his three convictions. The appeal came before the County Court on 13 September 1999.

At the conclusion of the hearing of the appeal, His Honour allowed the appeal, set aside the orders of the Magistrates' Court, but then re-convicted the plaintiff of the three charges.

In respect of the charge of failing to give way the plaintiff was fined the sum of $800 and his licence to drive a motor vehicle was suspended for a period of two months; in respect of the charge of failing to stop after an accident the plaintiff's licence was suspended for a period of nine months; and in respect of the charge of failing to exchange names and addresses the plaintiff's licence was suspended for a period of four months.

And so instead of the original period of suspension of four months, the plaintiff's licence to drive a motor vehicle was suspended for a total period of nine months.

The following are the grounds upon which the plaintiff seeks relief:

"1. The plaintiff was an appellant in proceedings before the second defendant upon the information laid by the first defendant. 2. The second defendant made findings that the plaintiff and his witness (a) concocted a story (b) that reason for concocting a story was to put a reasonable doubt in the mind of the judge (c) knew such a course was necessary because they knew the penalties for this kind of offence (d) knew the penalties because of their previous experience in the courts. 3. Further the second defendant found that the proceedings were (a) vexatious (b) frivolous. 4. Further the second defendant disqualified the plaintiff's licence for 9 months. 5. The matters referred to in paragraph 2 herein were never put to the plaintiff nor his witness in evidence nor was the prospect of such a finding put to the plaintiff's counsel to enable rebutting evidence to be called. As a result the plaintiff was denied procedural fairness. 6. The findings referred to in paragraphs 2, 3 and 4 herein were unreasonable. 7. In declining to allow the abandonment of the appeal the judge failed to take into account a relevant consideration that he had indicated the plaintiff's disqualification was inadequate without hearing matters personal to the plaintiff."

Ground 1 is not a ground for relief and can be disregarded.

Grounds 2, 3, 5 and 6 relate to findings made by His Honour at the conclusion of the hearing of the appeal.

The plaintiff's account of His Honour's findings appears in Paragraph 13 of his affidavit sworn 4 October 1999. The paragraph reads :

"13. His Honour then made his findings of fact. He found the prosecution witnesses to be honest and reliable, especially Mr McCallum who he would want to be driving next to him on the road. He found that Mr West and Mr Petruk had concocted a story between them of sufficient cogency to put a reasonable doubt in the mind of a judge, because they know the penalties for an offence of this nature, from their previous experience with the court. The prosecution witnesses had no experience with the courts. He said he thought the previous disqualification was inadequate. The appeal was frivolous and vexatious. In his view the previous disqualification was inadequate."

Whilst that account has been challenged by His Honour in a report submitted by him to this court, I propose to deal with the proceeding on the footing that the plaintiff's account of what was said is accurate.

The principal findings made by His Honour were clearly the finding that the prosecution witnesses were honest and reliable and the finding that the plaintiff and his witness Petruk had concocted a story between them.

Having pronounced those findings, and findings of that nature were clearly open to His Honour to make, it is my view that anything His Honour said thereafter concerning the plaintiff and Petruk was quite irrelevant.

It is not a requirement of natural justice that a trial judge warn counsel that he does not accept his client 's evidence or that he is of the view that his client and a witness have concocted a story, and then give counsel an opportunity to re-open his case and adduce further evidence with a view to bolstering the credibility of his client and the witness.

Except in exceptional circumstances, once a defendant has closed his case that is an end to the matter.

In a case where a judge proposes to make findings in relation to issues which were not considered and dealt with by the parties, it is clear that the judge must bring such matters to the attention of the parties and give them an opportunity to be heard in relation to them. But this was not such a case.

Further, having regard to the guilty plea which had been entered on the plaintiff's behalf in the Magistrates' Court, the judge was more than justified in describing the appeal as "frivolous" and "vexatious". It was not incumbent upon His Honour to forewarn the plaintiff's counsel that that was his view of the matter.

In my opinion there is no substance to grounds 2, 3, 5 and 6.

The fact that His Honour increased the suspension of the plaintiff's licence from four months to nine months is something he was entitled to do having regard to the view His Honour had formed as to the behaviour of the plaintiff.

Section 86(1AA) of the Magistrates' Court Act 1989 ("the Act") makes it clear that it is not incumbent upon a judge of the County Court to warn an appellant before he does so that he may possibly increase the period of suspension imposed by the Magistrates' Court. His Honour made no error of law in doing so and ground 4 must also fail.

I deal finally with the plaintiff's complaint that His Honour refused to allow him to abandon his appeal.

To abandon his appeal after the hearing of the appeal had virtually concluded, as the plaintiff endeavoured to do, required the leave of the court. See clause 6(2A) of Schedule 6 of the Act.

Clause 6(2C) provides that the County Court may only grant leave on an application under sub-clause (2A) if it is satisfied that it is in the interests of justice to do so because of the existence of special circumstances.

His Honour took the view that there were no special circumstances and that it was not in the interests of justice therefore to do so.

In my opinion His Honour made no error in the matter. I also consider that there were no special circumstances in the case. Ground 7 therefore cannot be sustained.

Prior to my hearing the appeal the learned judge had submitted to this court a report relating to the appeal. His authority for so doing is said to be the decision of the Full Court of this court in R v. Chairman of General Sessions at Hamilton, ex parte Atterly [1959] VicRp 101; (1959) V.R. 800. There was much debate before me as to whether such a report should be considered on the hearing of a proceeding such as the one presently before the court.

In the final analysis I found it unnecessary to have regard to His Honour's report in arriving at my decision in the matter. I express no further view, therefore, in relation to the report.

The originating motion will be dismissed. I order that the plaintiff pay the first defendant's costs of the originating motion, including any reserved costs

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