McKenzie & Anor v Magistrates' Court of Victoria & Anor

[2013] VSCA 81

Victorian Court of Appeal

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Interrogate

Catchwords

1. Criminal Law
2. › Committal proceedings
3. › Nature and purpose
4. › Administrative or ministerial function
5. › Whether magistrate has power to dismiss charges in interests of justice
6. › Whether s 11.5(6) Criminal Code Act 1995 (Cth) confers power on committing magistrate
7. › Criminal Code Act 1995 (Cth), s 11.5(6)
8. › Criminal Procedure Act 2009 (Vic), ss 97, 141(4), 155
1. Criminal Law
2. › Committal proceedings
3. › Witness summonses
4. › Legitimate forensic purpose
5. › Whether evidence relevant to exercise of jurisdiction, power or function of committing magistrate
6. › Whether summonses should be set aside where evidence directed to application magistrate has no power to grant
1. Appeal
2. › New point on appeal
3. › Point not taken below
4. › Whether appellants permitted to raise jurisdictional point for first time on appeal
5. › Court's responsibility to ensure inferior courts act within power

Quick Take

A magistrate presiding at a committal proceeding has no power to dismiss charges in the interests of justice pursuant to s 11.5(6) of the Criminal Code Act 1995 (Cth); that provision is directed at trial courts. Witness summonses at committal that are directed solely to supporting an application the magistrate has no power to grant will be set aside for lack of legitimate forensic purpose. The purposes of a committal in s 97 of the Criminal Procedure Act 2009 (Vic) do not extend to enabling an accused to advance a positive case for dismissal.