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Monday, 26 July 2010

Salt v Godenzi & Anor: the final days of proper venue?

With the introduction of the Criminal Procedure Act 2009 the phrase proper venue is soon to become obsolete.



The phrase comes with several decades of jurisprudence attached to it. The new Act deliberately avoids using it in s 11.



One of the last cases that will consider it is Salt v Godenzi & Anor [2010] VSC 259. The accused attempted to rely upon a typographical error in the charge-sheet (a failure to nominate the suburb of the court) but the argument was rejected in each of the three jurisdictions it was argued.



After brief analysis of Project Blue Sky v The ABA (1998) 194 CLR 355, Sinclair v The Magistrates Court of Victoria at Ringwood [1998] VSC 170 and s 50 of the Magistrates' Court Act 1989 (as it then was) Beach J found,




24 In my view, s 50 of the Magistrates’ Court Act is the answer to the plaintiff’s argument. Section 50 prohibits a court from allowing an objection to a summons on account of any defect or error in it in substance or in form. In this case, the plaintiff sought to persuade the Court below to allow an objection to the summons “on account of ... [a] defect or error in it in substance”. There were five appearances at the Frankston Magistrates’ Court. The plaintiff was aware that the Frankston Magistrates’ Court was the venue for the proceeding and he attended with counsel on the day the charges were listed for hearing. The plaintiff then initiated an appeal from the orders of the Magistrate and again attended with counsel for the hearing of the appeal. The very purpose of s 50 is to prevent an argument of the kind put by the plaintiff in this case.




His Honour continued,



27 In further support of the argument that s 50 of the Magistrates’ Court Act had no application in this case, I was referred to six additional authorities: Woolworths (Victoria) Limited v Marsh (Unreported, Ormiston J delivered 12 June 1986), Goodey v Clarke [2002] VSC 246, Green v Philippines Consulate General [1971] VR 12, John L. Pty Ltd v The Attorney General for the State of New South Wales (1987) 163 CLR 508, Flanagan v Remick [2001] VSC 507 and Ex parte Lovell; re Buckley (1938) 38 SR (NSW) 153. However, none of these cases are of assistance to the plaintiff. All of these cases concern the laying of charges or informations which were found to be defective. There is no suggestion that the charges laid in the present case were in any way defective. The plaintiff’s complaint concerns the terms and content of the summons. The proceeding was commenced in the Magistrates’ Court by the filing of the charges. It was then necessary for a summons to be issued to answer the charges. The considerations concerning the filing of defective charges do not have the same application as those in relation to a defective summons. Nothing in the authorities relied upon by the plaintiff cuts across the plain reading and application of s 50 of the Magistrates’ Court Act in this case.




The application for review was dismissed.

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