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Adams v Navaratnam

Adams v Navaratnam

Case [2021] ACTSC 256 8 October 2021

Appeal

Procedural Fairness

Residual Discretion

Duty to Avoid Appealable Error

Criminal Law

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SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	Adams v Navaratnam
Citation:	[2021] ACTSC 256
Hearing Date:	27 September 2021
DecisionDate:	8 October 2021
Before:	Loukas-Karlsson J
Decision:	The appeal is dismissed.
Catchwords:	APPEAL – CRIMINAL LAW – Appeal from the Magistrates Court – prosecution appeal – role of the prosecution at sentence – denial of procedural fairness – residual discretion – appeal dismissed
Legislation Cited:	Crimes (Sentencing) Act 2005 (ACT) s 17 Director of Public Prosecutions Act 1990 (ACT) s 12 Magistrates Court Act 1930 (ACT) ss 219D, s 219F Road Transport (Alcohol and Drugs) Act 1977 (ACT) s 19
Cases Cited:	Barbaro v The Queen [2014] HCA 2; 254 CLR 58 Biddle v Gatherer [2021] ACTSC 236 Bennett v Daley [2021] ACTSC 159 Bugmy v The Queen [2013] HCA 37; 249 CLR 571 Button v The Queen [2010] NSWCCA 264 CMB v Attorney-General (NSW) [2015] HCA 9; 256 CLR 346 Commonwealth of Australia v Director, Fair Work Building Industry Inspectorate; Construction, Forestry, Mining and Energy Union v Director, Fair Work Building Industry Inspectorate [2015] HCA 46; 258 CLR 482 Dang v The Queen [2014] NSWCCA 47 Director of Public Prosecutions (Vic) v Karazisis [2010] VSCA 350; 31 VR 634 GAS v The Queen [2004] HCA 22; 217 CLR 198 Griffiths v The Queen [1977] HCA 44; 137 CLR 293 Green v The Queen; Quinn v The Queen [2011] HCA 49; 244 CLR 462 Hall v CL [2015] ACTSC 286 HT v The Queen [2019] HCA 40; 278 A Crim R 133 Kioa v West [1985] HCA 81; 159 CLR 550 Kirby v Ali [2021] ACTSC 95 Matthews v The Queen [2014] VSCA 291 Middleton v The Queen [2020] ACTCA 6 R v Dennis [2015] NSWCCA 297 R v JW [2010] NSWCCA 49; 77 NSWLR 7 R v Lewis [1988] HCA 24; 165 CLR 12 R v Tait (1979) 24 ALR 473 R v Tocknell (NSW Court of Criminal Appeal, 28 May 1998, unreported) Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam [2003] HCA 6; 214 CLR 1 Tatur v R [2020] NSWCCA 255
Texts Cited:	Judicial Commission of New South Wales, Sentencing Bench Book (Judicial Commission of New South Wales, September 2021) The prosecutor’s role in sentencing (2014) 26(6) JOB 47
Parties:	Bradley Lindsay Adams (Appellant) Rubaramesh Navaratnam (Respondent)
Representation:	Counsel K Lee (Appellant) E Chen (Respondent)
Solicitors ACT Director of Public Prosecutions (Appellant) Legal Aid ACT (Respondent)
File Number:	SCA 25 of 2021
Decision under appeal:	Court: ACT Magistrates Court Before: Magistrate Cook Date of Decision: 2 July 2021 Case Title: Adams v Navaratnam Court File Number: CAN 1657/2021

LOUKAS-KARLSSON J:

Introduction

On 2 July 2021, Rubaramesh Navaratnam (the respondent) was sentenced by Magistrate Cook (the Magistrate) for an offence of driving with a prescribed concentration of alcohol in breath, being level three, contrary to s 19(1) of the Road Transport (Alcohol and Drugs) Act 1977 (ACT). The…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Adams v Navaratnam

Details

AGLC: Adams v Navaratnam [2021] ACTSC 256
Case: [2021] ACTSC 256
Decision Date

CaseChat Overview and Summary

In Adams v Navaratnam, the appellant, Bradley Lindsay Adams, appealed against the sentence imposed on Rubaramesh Navaratnam (the respondent) for an offence of driving with a prescribed concentration of alcohol in breath. The appeal concerned whether the Magistrate erred in failing to consider each of the mandatory requirements of s 17(3) of the Sentencing Act in relation to the matter, failing to afford procedural fairness to the prosecution by not providing any opportunity to make submissions against the imposition of a non-conviction order, not providing adequate reasons for his decision, and whether the sentence was manifestly inadequate. The respondent conceded that the appellant was denied procedural fairness, and the appellant did not press appeal grounds (a), (c), and (d) at the hearing.

The court held that it is a fundamental principle of the justice system that all courts are obliged to accord procedural fairness to parties to a proceeding. The prosecution is as much entitled to natural justice as any other litigant. The court concluded that the Magistrate clearly erred in denying procedural fairness to the prosecution in this case. The concession as to error was properly made by the respondent.

The court held that it is well established that the onus is on the prosecution to persuade an appeal court to decline to exercise its residual discretion in favour of the offender. In this case, the appellant has established, and the respondent has correctly conceded, that there was an appealable error. It is clear that the primary purpose of a prosecution appeal is to lay down principles for the governance and guidance of the courts with the duty of sentencing convicted persons. In this case, the court has the discretion to refuse to intervene, even where error is established. It is appropriate to exercise that discretion not to intervene. It is therefore proper to dismiss the appeal.

The appeal is dismissed.

Orders