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…

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 Austin v Cochrane

Details

AGLC: Austin v Cochrane [1998] TASSC 2
Case: [1998] TASSC 2
Decision Date: 4 February 1998

CaseChat Overview and Summary

Hugh Cameron Austin (the applicant) sought to appeal against the conviction and sentence imposed by a magistrate for possessing an opened or unsealed container of liquor in a public street. Austin pleaded guilty to the charge and the magistrate found the charge proven, imposing a fine of $30 and ordering Austin to pay costs of $35. The applicant's main contention was that the magistrate should not have accepted the guilty plea without first advising Austin that he could raise a reasonable excuse as a defence, and that the sentence was manifestly excessive. The applicant argued that the magistrate failed to explain the nature and ingredients of the offence before accepting the guilty plea, and that this was an error of law.

The court considered whether a wine bladder, which had been removed from its cask and was half empty, amounted to an "opened container of liquor" as per the Police Offences Act 1935. The court found that once the bladder had been opened and some of its contents removed, it became an "opened" container. The court also found that the magistrate provided adequate reasons for being satisfied that the container was an opened one and that there was no reason why the magistrate should not have proceeded to conviction. The court further determined that the magistrate did not err in law by failing to advise the applicant of his right to raise a reasonable excuse as a defence to the charge, as the applicant had pleaded guilty to the charge, admitting all its essential ingredients. Lastly, the court found that the sentence imposed was not manifestly excessive, as it was well below the prescribed maximum for a first offender.

The motion was dismissed.

Orders