Magistrate will consider whether accused might be eligible for drug and alcohol treatment order
Quashing a Victoria Magistrates’ Court decision, the Victoria Supreme Court referred an accused’s application, which wanted to adjourn his proceedings to the Drug Court Division, to a different magistrate for a hearing and determination under the law.
In Butkovic v Magistrates' Court of Victoria [2026] VSC 523, the plaintiff faced eight sets of criminal proceedings before the Magistrates’ Court of Victoria. He has remained in custody since being remanded on 9 April 2026.
Pursuant to s 4B of the Magistrates’ Court Act 1989 (Vic), the plaintiff applied to adjourn his matters to the Drug Court. Under s 4B, a magistrate could determine whether an accused might be eligible for a drug and alcohol treatment order (DATO).
On 12 May 2026, the Magistrates’ Court refused the adjournment application.
In a judicial review proceeding seeking a certiorari order, the plaintiff sought to set aside the Magistrates’ Court orders and to remit the proceedings to that court, constituted by a different magistrate, to consider his adjournment application.
Asserting a jurisdictional error or an error on the face of the record in the magistrate’s decision, the plaintiff alleged that the magistrate:
The defendants, which included the Magistrates’ Court, countered that:
The Victoria Supreme Court granted the application for an expedited hearing and issued the plaintiff’s requested orders.
Based on its interpretation of the plain meaning of the words of the relevant provision, the Victoria Supreme Court ruled that the magistrate should not have required satisfaction in “all the circumstances” that making a DATO would be appropriate at the preliminary or filtering s 4B stage.
The Victoria Supreme Court held that the defendants failed to satisfactorily weigh the practical implications of the magistrate’s adopted construction of s 4B or show that the magistrate’s approach met the DATO route’s underlying purpose and intent.
According to the Victoria Supreme Court, s 4B aimed to filter proceedings involving an accused who might be eligible for a DATO if the Drug Court Division convicted them of the offence.
“In my view, the discretionary element being of section 4B(1)(a) requires the Magistrate to have regard to the factual and objective eligibility criteria in section 18Z and if those eligibility criteria are demonstrated then the Magistrate ought be satisfied that the accused ‘might be eligible’ for a DATO,” wrote Justice Michelle Quigley for the court.
The Victoria Supreme Court explained that the s 18Z(3) consideration of whether a DATO was appropriate in all the circumstances was only relevant to the Drug Court’s exercise of discretion to an application properly transferred to it.
Considerations would include whether:
The Victoria Supreme Court concluded that the issue of whether an immediate custodial sentence was the only option was a consideration for the Drug Court or the mainstream court during sentencing, not for the magistrate exercising the s 4B power and function.
Here are some other recent decisions by the Supreme Court of Victoria.
In a group proceeding against Entain Group Pty Limited under Part 4A of the Supreme Court Act 1986 (Vic), the Victoria Supreme Court issued a 20 July 2026 decision fixing legal costs at 33 percent of any award or settlement that the group might recover.
Upon finding insufficient prospects of success in the proposed grounds of appeal, the Victoria Supreme Court’s Court of Appeal made a 3 July 2026 decision declining leave to appeal against an order for a legal practitioner to provide the details of an email account he used.
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