(2) Pursuant to s 219F(1) of the Magistrates Court Act 1930 (ACT), the Orders made in the Magistrates Court on 13 December 2022 are set aside in relation to the following proceedings: CAN 14405/2020; CAN 14406/2020; CAN 14407/2020; CAN 14409/2020; CAN 14410/2020; CAN 14412/2020; CAN 14414/2020; CAN 14415/2020; CAN 14417/2020; CAN 1124/2022.
(3) Each of the proceedings referred to in Order 2 are remitted to the Magistrates Court, differently constituted, for further hearing according to law.
Catchwords:
APPEAL – CRIMINAL LAW – Review appeal under Magistrates Court Act 1930 (ACT), s 219D(c) – multiple charges of acts of indecency – appeal brought on basis that decision should not in law have been made – whether appeal incompetent – whether failure to give adequate reasons – where reasons did not identify factual and legal issues in dispute – error established – whether residual discretion should be exercised – where no delay by Prosecution in bringing the appeal – where no double jeopardy established – appeal allowed – charges remitted to a different magistrate in the Magistrates Court
PRACTICE AND PROCEDURE – CRIMINAL LAW – review appeal under Magistrates Court Act 1930 (ACT), s 219D(c) – meaning of “the decision should not in law have been made” – whether confined to jurisdictional error
[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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AGLC
Bourke v Styche [2024] ACTSC 62
Case
[2024] ACTSC 62
Decision Date
CaseChat Overview and Summary
The case of Bourke v Styche involved the appellant appealing against the decision of a magistrate in the Magistrates Court of the Australian Capital Territory. The appellant was found guilty of multiple charges of acts of indecency. The appeal was brought on the ground that the decision should not in law have been made, primarily focusing on the adequacy of the reasons given by the magistrate.
The central legal issue before the court was whether a failure to give adequate reasons by a magistrate, which did not identify the factual and legal issues in dispute, constitutes an error of law under s 219D(c) of the Magistrates Court Act 1930 (ACT). The court had to determine if the appeal was competent and whether the residual discretion to allow the appeal should be exercised, considering the absence of delay by the Prosecution and the lack of double jeopardy.
The court examined the reasons provided by the magistrate and found them insufficient as they did not sufficiently expose the path of reasoning that led to the conclusion. The reasons did not explain why, despite finding the complainants credible, the magistrate could not reject the respondent’s account as reasonably true. The court held that the duty to give reasons was not satisfied, as the magistrate merely considered the respondent’s evidence in isolation and questioned its plausibility without explaining why he could not reject it. This failure to provide adequate reasons was deemed to fall short of the legislative requirement for justice to be seen to be done.
The court allowed the review appeal, set aside the orders made by the magistrate, and remitted the proceedings to the Magistrates Court for further hearing. This decision underscored the importance of providing detailed reasons in judicial decisions, especially in serious cases heard by a magistrate at the election of the respondent.
Orders
Orders of the court
(1) The review appeal is allowed.
(2) Pursuant to s 219F(1) of the Magistrates Court Act 1930 (ACT), the Orders made in the Magistrates Court on 13 December 2022 are set aside in relation to the following proceedings:
CAN 14405/2020; CAN 14406/2020; CAN 14407/2020; CAN 14409/2020; CAN 14410/2020; CAN 14412/2020; CAN 14414/2020; CAN 14415/2020; CAN 14417/2020; CAN 1124/2022.
(3) Each of the proceedings referred to in Order 2 are remitted to the Magistrates Court, differently constituted, for further hearing according to law.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
The appellant submitted that it was not possible from the reasons given to understand what specifically the magistrate had a reasonable doubt about, or why he had such a doubt. The appellant argued that the reasons fell short of what was stated by Nettle J in DL at [131] (references omitted, emphasis added):Since parties must be able to see the extent to which their cases have been understood and accepted, a trial judge will ordinarily be expected to expose his or her reasoning on points critical to the contest between the parties. This applies both to evidence and to argument. If a party relies on relevant and cogent evidence which the judge rejects, the judge should provide a reasoned explanation for the rejection of that evidence. If the parties advance conflicting evidence on a matter significant to the outcome, both sets of evidence should be referred to and reasons provided for why the judge prefers one set of evidence to the other. Similarly, while a judge is not required to deal with every argument and issue that might arise in the course of a trial, if a party raises a substantial argument which the judge rejects, the judge should refer to it and assign reasons for its rejection. And in providing reasons, the judge is required to make apparent the steps he or she has taken in reaching the conclusion expressed, for reasons are not intelligible if they leave the reader to speculate as to which of a number of possible paths of reasoning the judge may have taken to that conclusion. Failure sufficiently to expose the path of reasoning is therefore an error of law. The appellant argued that the duty to give reasons was not satisfied by providing bare, unexplained conclusions that the respondent’s evidence could not be rejected. It was not sufficient for the magistrate to say that he was unable to reject the respondent’s account of events in circumstances where there was no explanation of why, having found each complainant to be both credible and reliable in their accounts, he could not reject the respondent’s account as being reasonably true. The most the magistrate appears to have done is simply considered the respondent’s evidence alone and asked himself whether it was plausible. This was not a case where reasons were given immediately following the hearing. The magistrate reserved for over a month before delivering reasons. There was no criticism of that course. The appellant argued the nature and seriousness of the case required that to be done, in order to provide the detailed reasons explaining the findings for what were indictable offences, heard by the magistrate at the election of the respondent. The appellant complained that the large gaps in the reasoning of the magistrate “cannot be filled by a benevolent construction of the reasons or by attempting to draw inferences as to what his Honour took into account”, relying on BK at [142]. The respondent argued that the magistrate did give “comprehensive reasons” why he was unable to reject the respondent’s evidence:These reasons were:·the respondent gave evidence that he was shopping for an 80s themed party or else shopping for clothing (this is consistent with the prosecution witnesses);·he described himself as a fussy shopper and this was confirmed by the evidence in relation to each incident and CCTV footage of his attendance in Tarocash;·the items he tried on were very revealing;·he gave evidence that he took steps to conceal his genitals;·he provided his phone number to one complainant and entered his membership details at another store. He was making no attempt to conceal his identity and this was consistent with his account that he was shopping for clothing, rather than having any nefarious intention;·during the final incident, he noticed a change in demeanour of the complainant when he described the costume he wanted to wear, nevertheless [he] continued to try on clothing;·he came forward and identified himself to police;·there were concessions made by the complainants.
Decision
Reasons for decision
It remains to consider whether a failure to give reasons falls within the ground of review so construed. In that regard, it is helpful to reason from first principles, with the High Court in Fleming explaining the point at [22] (references included in the body of the text, emphasis added):Here one of the questions raised by the appellant turns upon the significance for an appeal of a failure to observe the requirements imposed by Pt 9 of the Criminal Procedure Act. The scope and purpose of that legislation is a matter of first importance. Some insight into those questions is provided by the decision of the New South Wales Court of Appeal in Pettitt v Dunkley [[1971] 1 NSWLR 376]. Section 142 of the District Courts Act 1912 (NSW) provided for an appeal to the Court of Appeal by a party who was "aggrieved by the ruling, order, direction, or decision of the judge in point of law". It was held in Pettitt v Dunkley that the failure of the trial judge, sitting without a jury, to give reasons for his decision made it impossible for the Court of Appeal to determine whether or not the verdict was based on an error of law, and this had the consequence that the failure to give reasons itself constituted an error of law [at 381-382, 385, 388]. In Public Service Board of NSW v Osmond [(1986) 159 CLR 656 at 666], Gibbs CJ said that the decision in Pettitt v Dunkley "that the failure to give reasons was an error in law may have broken new ground". Even if that be so, and we should not be taken as acceding to the view that new ground was broken in Pettitt v Dunkley, the reasoning of the Court of Appeal upon the construction of s 142 should be accepted. Further, in the present case, the obligation to give reasons is specified in the statute itself, namely in the mandatory terms of s 33. Such a provision is an expression of legislative concern not only for the effective exercise by the Court of Criminal Appeal of its jurisdiction conferred by ss 5 and 6 of the Criminal Appeal Act. More fundamentally, s 33 evinces a concern that, in the operation of the new regime established by Pt 9 of the Criminal Procedure Act whereby trial by jury is replaced in certain circumstances by trial by judge sitting alone, justice must not only be done but also be seen to be done. Plainly, the decisions in Fleming and in Pettitt v Dunkley [1971] 1 NSWLR 376 (Pettitt) were construing a different statute, where the words creating the appeal right were “a party aggrieved by the ruling, order, direction, or decision of the judge in point of law.” However, in my view, the language in question is substantively similar to the words used in s 219D(c). I cannot see any material difference between “in law” and “in point of law”. The reasoning remains applicable by analogy to the statute under consideration here, namely that a decision by a trial magistrate sitting alone, that fails to give adequate reasons, is not a decision that “in law” should have been made, simply because it falls short of justice being “seen to be done”.