Bishop v Houlahan; Bishop v Lawrence - [2016] ACTSC 384

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	Bishop v Houlahan; Bishop v Lawrence
Citation:	[2016] ACTSC 384
Hearing Date(s):	4 July, 25 July and 21 September 2016
DecisionDate:	23 December 2016
Before:	Penfold J
Decision:	SCA 37 of 2015: Mr Bishop’s purported appeal against the licence disqualification period operative under s 33 of the Road Transport (Alcohol and Drugs) Act was incompetent and of no effect. SCA 38 of 2015: Mr Bishop’s appeal against the convictions recorded and sentences imposed by the Chief Magistrate in respect of CC15/512, 513, 514, 541 and 542 is dismissed.
Catchwords:	CRIMINAL LAW – APPEAL AND NEW TRIAL – Appeal – General Principles – offence of driving with a level four concentration of alcohol in breath as a repeat offender – purported appeal from default disqualification period operative under s 33 of the Road Transport (Alcohol and Drugs) Act – appeal incompetent – effect of incompetence on stay of disqualification under s 216 of the Magistrates Court Act. CRIMINAL LAW – APPEAL AND NEW TRIAL – appeal from convictions and sentences imposed by Magistrate – pleas of guilty entered to one offence each of failing to leave a licensed premises and hindering a public official and three offences of resisting a public official – whether appellant denied procedural fairness in relation to sentencing proceedings – appeal dismissed.
Legislation Cited:	Court Procedures Rules 2006 (ACT), r 5173 Crimes Act 1900 (ACT), s 334 Criminal Code 2002 (ACT), s 361(1) Liquor Act 2010 (ACT), s 138(1) Magistrates Court Act 1930 (ACT), ss 208, 216, 218, 219B, div 3.10.2 Road Transport (Alcohol and Drugs) Act 1977 (ACT), ss 19(1), 33 Road Transport (Driver Licensing) Regulation 2000 (ACT), s 3A Road Transport (General) Act 1999 (ACT), s 61B Supreme Court Act 1933 (ACT), s 20
Cases Cited:	Burow v The Queen [2015] ACTCA 61; 11 ACTLR 157 Senderowski v Mothersole [2013] ACTSC 217
Parties:	Anthony Eric Bishop (Appellant) SCA 37 of 2015: Justin James Houlahan (Respondent) SCA 38 of 2015: Troy Andrew Lawrence (Respondent)
Representation:	Counsel Self-represented (Appellant) Mr S McLaughlin (both Respondents)
Solicitors Self-represented (Appellant) ACT Director of Public Prosecutions (both Respondents)
File Numbers:	SCA 37 of 2015; SCA 38 of 2015
Decisions under appeal:	Court: ACT Magistrates Court Before: Chief Magistrate Walker Date of Decision: 26 March 2015 1. Case Title: Justin James Houlahan and Anthony Eric Bishop Court File Number: CC14/10873 2. Case Title: Troy Andrew Lawrence and Anthony Eric Bishop Court File Numbers: CC15/00512; CC15/00513; CC15/00514; CC15/00541; CC15/00542

PENFOLD J:

Introduction

Anthony Bishop has appealed against orders made in the Magistrates Court on 26 March 2015.

Sentences in the Magistrates Court

Mr Bishop was dealt with by Chief Magistrate Walker for a number of different offences:

(a)In respect of a drink-driving offence, committed on 5 November 2014 as a repeat offender and involving a level 4 concentration of alcohol in his breath in contravention of s 19(1) of the Road Transport (Alcohol and Drugs) Act 1977 (CC14/10873), Mr…

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.

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Details

Case: [2016] ACTSC 384
Decision Date: 23 December 2016

CaseChat Overview and Summary

The case of Bishop v Houlahan; Bishop v Lawrence involved an appellant, Mr Bishop, who sought to challenge both a disqualification period under the Road Transport (Alcohol and Drugs) Act and his convictions and sentences imposed by the Chief Magistrate. The dispute centred on Mr Bishop's appeal against the default disqualification period imposed following a conviction for driving with a level four concentration of alcohol in his breath as a repeat offender, as well as his convictions for failing to leave a licensed premises, hindering a public official, and resisting a public official. The appellant's appeal was lodged with the Supreme Court of Appeal (SCA).

The central legal issues before the court were whether Mr Bishop's appeal against the disqualification period was competent and, if so, whether the appeal affected the stay of disqualification under the Magistrates Court Act. Additionally, the court needed to determine whether Mr Bishop's appeal against his convictions and sentences was valid and whether he was denied procedural fairness during the sentencing proceedings.

The court found that Mr Bishop's appeal against the disqualification period was incompetent, as it was not permissible under the relevant statute. Consequently, the appeal had no effect and the disqualification period remained in force. Regarding the appeal against the convictions and sentences, the court dismissed it, finding no basis for procedural unfairness during the sentencing process. The court upheld the convictions and sentences imposed by the Chief Magistrate.

As a result of the court's decision, the purported appeal against the licence disqualification period was declared incompetent and of no effect. Furthermore, Mr Bishop's appeal against his convictions and sentences was dismissed, leaving the original convictions and sentences intact.

Orders

Orders of the court

SCA 37 of 2015: Mr Bishop’s purported appeal against the licence disqualification period operative under s 33 of the Road Transport (Alcohol and Drugs) Act was incompetent and of no effect.

SCA 38 of 2015: Mr Bishop’s appeal against the convictions recorded and sentences imposed by the Chief Magistrate in respect of CC15/512, 513, 514, 541 and 542 is dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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