Magistrate rebuked for ‘inexplicable’ application refusal

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A Victorian magistrate has been rebuked for his “inexplicable” decision to refuse an application a defense lawyer had not even made.

The lawyer, Anthony Brand, told magistrate John Bentley he was not applying for a diversion order and that Mr Bentley could not refuse such an application when one was not being sought.

“Well, I’m telling you diversion is not to be considered,” Mr Bentley responded, about the court program that allows suitable defendants to avoid a criminal record.

He told Mr Brand he could take the case to other hearing types, but that diversion was not an option.

A Supreme Court judge has found that the conduct of Mr Bentley, a former prosecutor and legal aid solicitor who was appointed in 2008, involved a serious breach of judicial fairness.

In taking the rare step of awarding costs against the Magistrates Court of Victoria, Justice Michael McDonald said Mr Bentley’s conduct in “purporting to rule on the appropriateness of diversion, when no such application was before him and he was being legitimately challenged upon his ability to do so, is inexplicable”.

In awarding costs, Justice McDonald said a superior court might be prepared to regard even an astounding blunder in a matter of substantive law as not exhibiting gross ignorance in a sense necessary to justify an award of costs.

“However, when one is concerned not with some ordinary rule of substantive law but with a fundamental principle concerning procedural fairness or natural justice, the inferior court may be held not be excused by its own ignorance,” he said.

In September Mr Brand and a police prosecutor had discussed at court diversion for his client, who was charged with driving offences, and a four-week adjournment to consider it further before they appeared before Mr Bentley.

After that hearing, Mr Brand applied to the Supreme Court to have quashed the order by Mr Bentley, who marked the court file “diversion refused”.

Lawyers for the police and the Magistrates Court, defendants to Mr Brand’s client’s application, did not oppose quashing Mr Bentley’s order, but each opposed any costs order.

In his judgment, Justice McDonald said the notation on the court file would be expunged and that Rowena Orr, SC, for the Magistrates Court, undertook that any future diversion application would not be heard by Mr Bentley.

Justice McDonald said that there was simply no capacity for (Mr Bentley) of his own motion to be considering an application for a diversion program.

He accepted Ms Orr’s submissions that Mr Bentley’s ruling did not legally prevent the defendant from applying for diversion and that the diversion law conferred a “broad discretion” when considering the appropriateness of one.

But Justice McDonald said neither considerations warranted the defendant not having a right to be heard.


Steve Butcher

December 26, 2014