Austin v Cochrane

[1998] TASSC 2

2/1998

PARTIES:  AUSTIN, Hugh Cameron
  v
  COCHRANE, Trudie Margaret

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  ORIGINAL
FILE NO/S:  LCA 39/1996
DELIVERED:  4 February 1998
HEARING DATE/S:  10 July, 2 December 1997
JUDGMENT OF:  Crawford J

CATCHWORDS:

Criminal Law - Particular offences - Miscellaneous offences and matters - Vagrancy, prostitution and kindred offences - Drunkenness in a public place and habitual drunkenness - Possession of an opened or unsealed container of liquor in public street - Whether half consumed bladder of wine from a wine cask with closed tap amounts to an opened container.

Police Offences Act 1935, s25(3).

Aust Dig Criminal Law [404]

Magistrates - Jurisdiction and procedure generally - Procedure - The hearing - Plea and statement of defence - Plea of guilty - Where defendant not represented - Whether magistrate failed to explain the nature and ingredients of the offence before taking plea - Whether failure an error of law.

Cooling v Steel (1971) 2 SASR 249; Browne v Smith (1974) 4 ALR 114; Ivanoff v Linnane (1979) 20 SASR 279, referred to.
Aust Dig Magistrates [85]

REPRESENTATION:

Counsel:
             Applicant:  W T McMillan
             Respondent:  M J Brett
Solicitors:
             Applicant:  Zeeman Kable & Page
             Respondent:  Director of Public Prosecutions

Judgment category classification:
Court Computer Code:  
Judgment ID Number:  2/1998
Number of pages:  5

Serial No 2/1998

File No LCA 39/1997

HUGH CAMERON AUSTIN v
CONSTABLE TRUDIE MARGARET COCHRANE

REASONS FOR JUDGMENT  CRAWFORD J

4 February 1998

According to the notice to review (incorrectly called a notice of appeal) the applicant intended to move the Court "to review the Order of A G Shott, Esq, Magistrate ... upon the hearing of a charge of possess an open or unsealed container of liquor in a public street ... whereupon the Learned Magistrate found proven that charge."  That may have been an inappropriate way to express what the applicant was seeking to do, although the learned magistrate did state that he found the charge proved and thereupon proceeded to fine the applicant $30 and ordered him to pay costs of $35.  I say these things because the applicant pleaded guilty to the charge, and his real complaint is that the magistrate should not have accepted the plea but instead should have given certain advice to the applicant and invited him to plead not guilty, or even directed that a plea of not guilty be entered.  See Marlow v R [1990] Tas R 1.

The grounds of the motion, as amended, were:

"1That upon hearing the explanation of the Applicant, the Learned Magistrate erred in fact and/or law in failing to direct that a plea of not guilty be entered.

2That the Learned Magistrate erred in fact and/or law in finding that the Applicant had in his possession an open container of liquor.

3That the Learned Magistrate erred in fact and/or law in that he failed to give any or any sufficient reasons for the decision to proceed to conviction.

4Alternatively, that the learned Magistrate should have found in all circumstances that the Appellant(sic) had a reasonable excuse to have in his possession an opened container of liquor in a public street.

5That in all the circumstances the sentence imposed upon the Appellant(sic) was manifestly excessive.

6That the Learned Magistrate erred in law when he failed to advise the Applicant of his right to raise a reasonable excuse as a defence to the charge."

On 5 July 1996 the applicant appeared before the learned magistrate and pleaded guilty to the charge in the complaint which was expressed as follows:

"CHARGE:  Possess open or unsealed container of liquor in public street.

BREACH OF: Section 25 (3) Police Offences Act, 1935.

PARTICULARS:  You are charged with on the 29th March, 1996 in The Avenue, Brisbane Street, a public street at Launceston in Tasmania, without reasonable excuse, having in your possession an open container of liquor, namely a 4 Litre wine bladder."

Following the making of the plea of guilty the prosecutor stated the facts to the learned magistrate and the applicant also made some statements.  Unfortunately no tape or transcript of what was said that day is available.  That has caused difficulties in the disposition of the motion, for grounds of review which allege errors on the part of a court cannot succeed unless the errors are shown to have occurred, either by evidence or by agreed facts, if there is no transcript available.  In this case the magistrate assisted by providing his affidavit dealing with his recollection, but even with it the material has been insufficient to enable the determination of the motion in favour of the applicant.

The evidence presented to me establishes that the magistrate was told that the police had found the applicant in The Avenue, Brisbane Street, Launceston, carrying a wine bladder.  The bladder had been removed from its original cask, which presumably was not in the possession of the applicant at that time.  The learned magistrate was also told that the bladder was half empty.

The applicant also pleaded guilty to a charge that he consumed liquor in a public street, at the same time and place as in the other charge.  However for reasons the learned magistrate is no longer able to recall, and which neither party put before me, the prosecutor did not wish to proceed with that charge and it was dismissed.

Notwithstanding that he had pleaded guilty to the charge which concerned his possession of the bladder of wine, the applicant raised with the learned magistrate the question whether or not the bladder was an open container of liquor.  He said that the bladder had a tap on it which was turned off.  His Worship wished to consider the point and adjourned the hearing until 22 July 1996, the court record being noted that there was no need for the applicant to appear.  According to the affidavit of the learned magistrate, it is his recollection that the applicant was not eager to return to court in view of the inconvenience associated with that course.  Thereafter the case was adjourned several times, on 22 July, 9 August, 28 August, 30 August and 18 September until finally on 7 October 1996 the learned magistrate concluded it.  I will deal with what occurred on that occasion shortly.  However I will first mention an amendment that was made to the complaint on 28 August.

The Police Offences Act 1935 s25(3), created the offence in these terms:

"(3) — A person must not, without reasonable excuse (proof of which lies on the person), have in his or her possession an opened or unsealed container of liquor in a public street or in any public place that is prescribed by the regulations for the purposes of this section."

The complaint charged the applicant with having in his possession "an open container of liquor".  At the hearing on 28 August 1996, when the applicant was not present, the learned magistrate ordered that the word "open" be amended to "opened".  The making of that amendment was not attacked before me.

On the last occasion on which the case came before the learned magistrate, again in the absence of the applicant, on 7 October 1996, his Worship indicated that he was satisfied that a wine bladder which had been opened on a prior occasion was "an opened container of liquor" within the meaning of that expression in the subsection.  The prosecutor confirmed to the learned magistrate that the applicant had been observed in Brisbane Street in possession of a half empty four litre wine bladder.  His Worship thereupon declared that the charge was proved and imposed the fine and made the order for costs.

I deal first with grounds 1 and 2 which raise the question whether a wine bladder, which has been removed from the cardboard cask which contained it when new, and half the contents of which have been removed, amounts to an opened container of liquor, as that expression is used in s25(3). Neither counsel was able to find any authority directly relevant and my own search was equally fruitless. Essentially the issue is whether the reference to an opened container of liquor is to a container of liquor which has been opened, or to a container of liquor which is open at the time of the defendant's possession of it. Counsel for the applicant submitted that the meaning of "opened" in the subsection is ambiguous and that the Court should therefore apply the interpretation that will avoid injustice (Ingham v Hie Lee (1912) 15 CLR 267 at 270), that will avoid consequences that appear irrational and unjust (Public Transport Commission (NSW) v J Murray-More (NSW) Pty Ltd (1975) 132 CLR 336 at 350) and that will produce the fairer and more convenient operation so long as it conforms to the legislative intention and not be capricious and irrational (Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1980-81) 147 CLR 297 at 321). However I do not find the meaning of "opened" ambiguous so far as concerns the facts of this case. It is arguable that the bladder in the possession of the applicant was not "open" and in the course of its normal use would not be open except when its tap was in an open position. While the tap was closed the bladder could not be said to be open. However once the bladder had been opened and some of its contents removed, it is my view that the bladder became an "opened" container. The word "opened" imports that the container has been opened. If it had been intended to prohibit possession of open containers only and not containers that were closed but which had previously been opened, "open" would have been used and not "opened". Grounds 1 and 2 therefore fail.

As to ground 3, adequate reasons were given by the learned magistrate for being satisfied that the container was an opened one.  The ground was not made the subject of specific argument, and having regard to the fact that the applicant pleaded guilty to the charge and raised nothing which suggested that he was not guilty, there appears no reason why the learned magistrate ought not to have proceeded to conviction, nor any reason why I should conclude that his Worship erred by failing to give sufficient reasons for convicting the applicant.

Ground 4 also must fail.  Nothing was communicated to the learned magistrate which suggested that the applicant may have had a reasonable excuse for his possession of the opened container of liquor in a public street.

I next deal with ground 6.  It obviously followed from the facts of the offence which were stated to the learned magistrate that the applicant was guilty of the offence unless in fact he had a reasonable excuse for having the opened container in "The Avenue", notwithstanding that nothing was said to the learned magistrate by either the prosecutor or the applicant to suggest that he did.  On the contrary, by his plea of guilty he admitted all the essential ingredients of the offence and therefore that he had no reasonable excuse.  R v Tonks [1963] VR 121 at 127; Di Camillo v Wilcox [1964] WAR 44 at 46.

Because the applicant was not represented by counsel the magistrate was obliged to comply with the Justices Act 1959, s74A(1), that is to say to cause the charge to be read to the applicant or state to him in simple terms with what he was charged, and to inform the applicant that he was entitled to have the proceedings adjourned in order to consider a course of action or to obtain legal advice in relation to the charge. It has not been suggested that the learned magistrate did not comply with that obligation. It was however, submitted by the applicant's counsel in support of ground 6 that the learned magistrate ought to have explained to the applicant that if he had a reasonable excuse for being in possession of the wine bladder in a public street, it would amount to a defence.

Although he made no mention of it in the court below, the applicant now claims that he had taken the wine bladder to a party in Bourke Street, Launceston and that he left the party to walk home to Elizabeth Street via the Mall, Brisbane Street and George Street carrying the partly consumed wine bladder with him for storage and future use at home or at other parties.  He now says that it was in the course of that journey that he was seen by the police with the wine bladder and subsequently charged.

The Police Offences Act 1935, s25(3), provides no explanation of what would amount to a reasonable excuse and the question was not fully argued before me. However it is arguable that the mere carriage of an opened or unsealed container of liquor in a public street for the purpose of proceeding from one address to another, would not exclude the establishment of a reasonable excuse if there was no consumption of any of the contents in the course of the journey, nor an intention that there would be. It might be thought that the intention behind the legislative provision was merely to prohibit the consumption of liquor in public streets and that an explanation for possession which included that consumption had not and would not have occurred amounts to a reasonable excuse. Such a legislative intention is suggested by what was said by the Minister for Police and Emergency Services in his second reading speech in the House of Assembly on 10 May 1995. The Minister said that the Bill (the Police Offences Amendment (Liquor) Bill 1995) by which s25 was inserted into the Police Offences Act 1935, was introduced to prohibit the consumption of liquor in public streets. Subsection (2) prohibits the consumption of liquor in public streets and I set out earlier in these reasons the terms of subs(3). However the point was not fully argued and it is not appropriate that I determine it.

Counsel for the applicant relied on South Australian authority in support of his submission that the learned magistrate erred in law if he failed to advise the applicant that he was entitled to raise as a defence to the charge that he had a reasonable excuse for his possession of the wine bladder.  The leading case in that regard is Cooling v Steel (1971) 2 SASR 249 at 250 - 251 where Wells J stated what he regarded were the duties of a court when an unrepresented defendant appeared before it. His Honour said inter alia that before a plea is entered, the court should make sure that the defendant understands the nature of the charge and he gave some examples of the kind of inquiry which might be made of a defendant in particular cases, at the same time emphasising that it is unnecessary and undesirable that the bench should deliver a lecture on the law.  His Honour thought that all that was needed was that the charge be explained briefly and simply, with emphasis upon those ingredients in relation to which misunderstanding may arise.  Having made the explanation, the court should satisfy itself that the explanation has been understood.  Wells J thought that next the defendant should be made to appreciate that the plea is entirely a matter for his own independent decision and that he is entitled to legal advice and representation and that he may ask for a reasonable adjournment to seek that advice or representation.  (cf Justices Act 1959, s74A(1)). His Honour dealt with other matters of advice which he thought should be given to a defendant, which are not material to this case. His Honour then summarised a court's duty by saying that "in general, the court should ensure that the defendant is appraised of his rights and his duties at all times, and be vigilant to keep the proceedings free of error or misunderstanding".

Much of what was said by Wells J was subsequently approved in Salter v Seebohm (1972) 4 SASR 192 and Jones v Holmwood [1974] WAR 33, although not the passage which said specifically that a court should make sure that the defendant understands the nature of the charge. That aspect was not an issue in those cases. That passage was however approved by Muirhead J in Browne v Smith (1974) 4 ALR 114 at 119 - 120, although it was not directly relevant and was cited only as part of what Wells J had said and in the context of an appeal which concerned the severity of sentence and not a conviction and which did not raise issues concerning the duty of a court with regard to the making of a plea of guilty by an unrepresented defendant and the acceptance of that plea by the court. In fact closer examination of Cooling v Steel reveals that the passage itself was obiter dicta in that case, which concerned an appeal only against the severity of sentence and not an appeal against conviction or one which raised such issues.  In none of the cases I have mentioned and none cited by counsel were those issues directly raised for determination.  Further, it should be noted that in Ivanoff v Linnane (1979) 20 SASR 279, Sangster J at 282 refused to accept that the Supreme Court of South Australia had "'laid down' - or, for that matter has the power to lay down - any 'procedure' to be 'followed' by courts of summary jurisdiction". Upon referring to the statement of Wells J in Cooling v Steel that before a plea is taken an unrepresented defendant should be told, briefly and simply, with what he is charged, Sangster J commented that in many cases this is quite plainly stated in the charge as read out and no separate explanation is called for.

I determine that it has not been established by the applicant that the learned magistrate made an error of law by failing to advise the applicant of his right to raise a reasonable excuse as a defence to the charge.  I am not persuaded that whatever the learned magistrate did or failed to do amounted to an error of law.  I am not persuaded either that the learned magistrate in substance failed to advise the applicant that a reasonable excuse was a defence to the charge or that it was inconsistent with guilt.  He was no doubt served with the complaint which expressed particulars of the charge in simple terms, explaining that he was charged with being in a public street and, without reasonable excuse, having an open container of liquor in his possession.  The Justices Act 1959, s74A(1), required the learned magistrate to cause the charge to be read to him or to state to him in simple terms with what he was charged. No complaint has been made by the applicant that the magistrate failed to comply with that duty. It may be that when performing it the learned magistrate did explain to the applicant that a reasonable excuse would be a defence, or at least said enough to make it clear that lack of a reasonable excuse was an element of the charge (notwithstanding that the onus of establishing the reasonable excuse rested upon the applicant). I have no evidence of precisely what the learned magistrate said to the applicant which may be relevant, nor of what the applicant may have said which revealed his understanding or lack of it. I am therefore far from satisfied that it was not made clear to him that if he had a reasonable excuse he would not be guilty. I add that there is no evidence before me that the applicant was unaware that a reasonable excuse was a defence or that he was in any way misled or that he misunderstood concerning the nature and elements of the charge to which he decided to plead guilty. Ground 6 fails.

I turn lastly to ground 5, which complains that the sentence was manifestly excessive.  The prescribed penalty was a fine not exceeding $200 or, in the case of a second or subsequent offence, a fine not exceeding $500.  The applicant was twenty years of age and had no prior convictions.  His counsel submitted that the learned magistrate did not turn his mind to the Probation of Offenders Act 1973 without any evidence justifying the submission.  Nothing of what occurred before the learned magistrate was put before me to indicate that the penalty was manifestly excessive.  The fine of $30 was well below the prescribed maximum for a first offender.  I take judicial notice that the offence was committed in a major thoroughfare in the centre of the city of Launceston and that there is general concern among many citizens about the level of drunkenness in the city.  No circumstances of this case which were before the magistrate have established to my satisfaction that the penalty was manifestly excessive.

For these reasons the motion will be dismissed.