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Barnes v Omant

Barnes v Omant

Case [2019] TASSC 38 30 August 2019

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[2019] TASSC 38

COURT: SUPREME COURT OF TASMANIA

CITATION: Barnes v Omant [2019] TASSC 38

PARTIES:  BARNES, Alisha (Senior Constable)
  v
  OMANT, Diane Lee

FILE NO:  3277/2018
DELIVERED ON:  30 August 2019
DELIVERED AT:  Hobart
HEARING DATE:  20 March 2019
JUDGMENT OF:  Wood J
CATCHWORDS:

Magistrates – Appeal and review - Tasmania – Motion to review – Other matters – Refusal of application by prosecution to adjourn sine die – Intention to proceed on substitute charges – Proposed undertaking to not proceed with complaint – Prosecution sought adjournment rather than dismissal due to impact on substitute charges – Effect of plea of autrefois acquit and incontrovertibility rule – No denial of justice to prosecution.

State of Tasmania v Finnegan [2011] TASSC 74, 21 Tas R 116, referred to.
Sali v SPC Ltd (1993) 116 ALR 625; R v Carroll [2002] HCA 55, 213 CLR 635, considered.
Aust Dig Magistrates [1349]

Magistrates – Jurisdiction – General matters – Other particular cases – Complaint dismissed – Question of jurisdiction – No election – Particulars of complaint did not disclose a monetary value – Common ground that value of alleged fraud was $8,000 – Flawed for duplicity – Inherent in prosecution's position that magistrates court had jurisdiction – No miscarriage of justice.

Justices Act 1959 (Tas), ss 29(2), 71(1), 72(2) and 110(2)(ab).
Aust Dig Magistrates [1022]

REPRESENTATION:

Counsel:
             Applicant:  S Nicholson
             Respondent:  G Stevens
Solicitors:
             Applicant:  Director of Public Prosecutions
             Respondent:  G Stevens

Judgment Number: [2019] TASSC 38
Number of paragraphs: 52

Serial No 38/2019
File No 3277/2018

SENIOR CONSTABLE ALISHA BARNES v DIANE LEE OMANT

REASONS FOR JUDGMENT WOOD J

29 August 2019

The respondent, Ms Diane Lee Omant, was charged on a complaint alleging a single charge of fraud contrary to s 253A of the Criminal Code. She pleaded not guilty to the charge and it was listed for hearing on 26 November 2018 before Magistrate Hay. Some weeks before the hearing date, the prosecution informed the defence in writing that the charge would not be proceeded with and that, on the hearing date, there would be an application to adjourn the complaint sine die. It was explained that the intention was to proceed with a new complaint that had recently been filed. The first listing of the new complaint was on 26 November, the same date and before the same court as the original charge was listed for hearing.
When the matters were called on, the prosecutor made the foreshadowed application to adjourn sine die the original complaint, stating that the prosecution would not be seeking to have it relisted. After hearing argument about the reason for the adjournment and the respondent's opposition to that course, the learned magistrate gave an oral decision refusing the adjournment. There was then further argument as to whether the court had jurisdiction to dismiss the complaint. The learned magistrate ruled that he had jurisdiction and dismissed the complaint. The prosecution…

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 Barnes v Omant

Details

AGLC: Barnes v Omant [2019] TASSC 38
Case: [2019] TASSC 38
Decision Date: 30 August 2019

CaseChat Overview and Summary

The case of Barnes v Omant was heard in the Magistrates Court of Tasmania, where the primary issue was whether the court had the authority to refuse an application by the prosecution to adjourn sine die and instead permit the proceedings to proceed on substitute charges. This matter arose out of an earlier complaint against the defendant, Barnes, who had been charged with an offence. The prosecution applied to adjourn the proceedings indefinitely rather than dismiss the complaint, due to the potential impact on the substitute charges. Barnes, on the other hand, argued that the prosecution's action amounted to a denial of justice.

The court was required to determine the legal implications of the prosecution's decision to proceed with substitute charges after an initial adjournment, particularly in light of the defendant's plea of autrefois acquit and the incontrovertibility rule. The court had to assess whether the prosecution's actions amounted to an abuse of process, and if the defendant's rights had been unfairly prejudiced. The court's decision hinged on whether the prosecution's application to adjourn sine die rather than dismiss the complaint constituted a denial of justice to the defendant.

The court found that the prosecution's intention to proceed on substitute charges and the proposed undertaking to not proceed with the complaint did not result in a denial of justice to the prosecution. The court considered the effect of the plea of autrefois acquit and the incontrovertibility rule, concluding that the prosecution's actions did not infringe upon the defendant's rights. The court determined that the prosecution's decision to seek an adjournment rather than dismissal was within the bounds of procedural fairness and did not amount to an abuse of process. Consequently, the court dismissed the defendant's application for review.

The court ordered that the application for review be dismissed and that the proceedings could continue on the substitute charges as proposed by the prosecution. The court's decision upheld the prosecution's right to seek an adjournment rather than dismissal, provided that it did not result in a denial of justice to the defendant.

Orders