Arachchi v Orlowski - [2003] VSC 161

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 4593 of 2003

SUNIL ARACHCHI	Appellant
v
MICHAEL ORLOWSKI	Respondent

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JUDGE:	NETTLE J
WHERE HELD:	Melbourne
DATE OF HEARING:	22 May 2003
DATE OF JUDGMENT:	2 June 2003
CASE MAY BE CITED AS:	Arachchi v Orlowski
MEDIUM NEUTRAL CITATION:	[2003] VSC 161

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Transport – offences - failing to produce a valid ticket on request – defences – authorised person has no powers under s. 221(4) of the Transport Act 1983 once journey has been completed – Transport Act 1983, ss. 221(1)(c), 221(2), 221(4), 218B(2), 219(2).

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr O.P. Holdenson QC with Mr A.G. Burns	Geraldine Sharman, Department of Infrastructure
For the Respondent	Mr P.G. Priest QC with Mr Michael Croucher	Hale & Wakeling

HIS HONOUR:

This is an appeal from a final order of the Magistrates’ Court made at Melbourne on 21 January 2003, whereby the Respondent was acquitted of a charge of failing to produce a ticket on request in contravention of s. 221(4) of the Transport Act 1983.

There is no dispute about the facts. On 10 May 2002 the Respondent travelled by tram from the city to a tram stop in Swanston Street, Carlton adjacent to the University. Having come to the stop he alighted to the pavement and took the one or two steps necessary to reach the safety zone. At that point he was requested by an “authorised person”[1] to produce a ticket that was valid for the journey he had just completed. He had a valid ticket and he could have produced it. But he chose not to do so because he considered that s. 221(4) did not require him to do so.
[1]Transport Act 1973, s. 221(1)(c)

In the court below the Magistrate defined the sole issue as:

“whether or not in all of the circumstances the (Respondent) having completed his journey was required to comply with the requirements of the authorised person under the Transport Act”.

His Worship determined the issue in favour of the Respondent by holding that an authorised person does not have power to request production of a ticket under s. 221(4 ) once the journey has been completed.

In this Court the question of law directed to be heard on the appeal is:

“whether the learned Magistrate erred at law by misapplying section 221(4) of the Transport Act 1983 in holding that the powers of authorised officers to require production of tickets set out in that provision ceased on the completion by a commuter of a journey”.

In my opinion the Magistrate did not err. The question is to be answered: no.
Section 221(4)

Section 221(4) provides:

“(4)A person who makes a journey in a carriage, or is on land or premises for entry to which a ticket is required, and, not being entitled to make that journey or entry without a ticket, fails, upon request being made by a member of the police…

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 Arachchi v Orlowski

Details

AGLC: Arachchi v Orlowski [2003] VSC 161
Case: [2003] VSC 161
Decision Date: 2 June 2003

CaseChat Overview and Summary

In the matter of Arachchi v Orlowski, the defendant, Orlowski, was charged with an offence under section 221(1)(c) of the Transport Act 1983, for failing to produce a valid ticket on request. The defendant pleaded not guilty, arguing that the authorised person, Arachchi, had no power to request the production of a ticket after the journey had been completed. The case was heard by the Magistrates’ Court of Victoria.

The legal issue before the court was whether the authorised person had the authority to request the production of a ticket after the completion of a journey. The court had to determine whether the authorised person's power to request the production of a ticket under section 221(4) of the Transport Act 1983 was limited to the time the journey was being made, or if it extended to after the journey had been completed. The court also had to consider the relevance of sections 218B(2) and 219(2) of the Transport Act 1983.

The court found that the authorised person's power to request the production of a ticket under section 221(4) of the Transport Act 1983 only extended to the time the journey was being made. The court held that once the journey had been completed, the authorised person had no power to request the production of a ticket. The court found that the defendant's argument was supported by the wording of section 221(4) of the Transport Act 1983, which refers to the time the journey is being made. The court also found that sections 218B(2) and 219(2) of the Transport Act 1983 did not support the defendant's argument. The court dismissed the charge against the defendant.

The court found that the authorised person had no power to request the production of a ticket after the completion of the journey. The court dismissed the charge against the defendant.

Orders