Brown v Palmer - [2008] VSC 335

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE
COMMON LAW DIVISION
No. 8172 of 2007
IN THE MATTER OF s 92 of the Magistrates' Court Act 1989
B E T W E E N

ALAN PAUL BROWN Appellant

v

DET. SEN. CONSTABLE MICHAEL JOSEPH PALMER Respondent
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JUDGE:

WILLIAMS J

WHERE HELD:

Melbourne

DATE OF HEARING:

8 April and 25 August 2008

DATE OF JUDGMENT:

4 September 2008

CASE MAY BE CITED AS:

Brown v Palmer

MEDIUM NEUTRAL CITATION:

[2008] VSC 335

~~---~~CRIMINAL LAW

- MAGISTRATES COURT – Appeal – Conviction under s 7(1) of the Surveillances Devices Act 1999 (“the Act”) – Whether magistrate erred in finding that device was an “optical surveillance device” under s 3(1) of the Act – Whether magistrate erred in finding the device was “installed” under s 7(1) of the Act.
CRIMINAL LAW – Sentence – Appellant publican – Whether magistrate took account of effect of conviction on appellant’s economic and social well-being and his employment prospects under s 8(1) of the Sentencing Act 1991.
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APPEARANCES:
Counsel Solicitors

For the Appellant Mr TJP Walker Logie-Smith Lanyon

For the Respondent Mr J McArdle QC The Office of Public Prosecutions

TABLE OF CONTENTS
The appeal........................................................................................................................................... 1
The Act................................................................................................................................................. 1
The evidence in the Magistrates’ Court......................................................................................... 3
The Magistrate’s decision................................................................................................................. 7
The sentence........................................................................................................................................ 8
The appeal........................................................................................................................................... 9
Submissions...................................................................................................................................... 11
Finding of guilt............................................................................................................................ 11
Sentence…………………………………………………………………………………..……...13
Conclusions....................................................................................................................................... 14
Finding of Guilt........................................................................................................................... 14
Sentence........................................................................................................................................ 16
~~DRAFT~~
HER HONOUR:`
The appeal

1 This is an appeal from orders of the Magistrates’ Court at Geelong on 3 August 2007, convicting the appellant of an offence under s 7(1) of the Surveillance Devices Act 1999 (“the Act”) and fining him the sum of $5,000. The appeal relates to both the conviction and the appellant’s sentence.

2 I note that, after reserving my decision in this appeal, it became apparent that the case had proceeded both in this Court and before the learned Magistrate on the erroneous basis that the definition of “optical surveillance device” in s 3(1) the Act at the date of the alleged offence on 21 April 2006 had been as it subsequently appeared on 23 July 2007 when the appellant came before the Magistrates’ Court.

3 The parties were given the opportunity to address the Court further on the matter. The appellant was given leave to amend the first three questions of law in the appeal so that they would refer to the correct version of the Act. Neither party sought to rely upon the error of law made by the learned magistrate in so far as he had applied the incorrect definition.

The Act

4 The offence was created by s 7(1) which was in the following terms on 21 April 2006 :

7. Regulation of installation, use and maintenance of optical surveillance devices
(1)Subject to sub-section (2), a person must not knowingly install, use or maintain an optical surveillance device to record visually or observe a private activity to which the person…

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 Brown v Palmer

Details

AGLC: Brown v Palmer [2008] VSC 335
Case: [2008] VSC 335
Decision Date: 4 September 2008

CaseChat Overview and Summary

The appellant, Brown, was convicted by a magistrate under section 7(1) of the Surveillance Devices Act 1999 for installing an optical surveillance device without a permit. Brown appealed to a higher court, arguing that the magistrate had erred in determining that the device in question was an "optical surveillance device" under section 3(1) of the Act and that it was "installed" under section 7(1) of the Act. Additionally, Brown contended that the magistrate did not adequately consider the impact of the conviction on his economic and social well-being and employment prospects, as required by section 8(1) of the Sentencing Act 1991.

The court examined the definition of an "optical surveillance device" under the Act and considered whether the device met the criteria set out in the legislation. The court also assessed whether the device was indeed "installed" and whether the magistrate's findings were supported by the evidence presented. Furthermore, the court scrutinised the sentence imposed, ensuring that the magistrate had appropriately weighed the impact of the conviction on Brown's personal circumstances as mandated by the Sentencing Act 1991.

In its decision, the court found that the magistrate had correctly identified the device as an "optical surveillance device" and that it was indeed "installed" within the meaning of the Act. The court concluded that the magistrate had properly exercised their discretion in imposing the sentence and had appropriately considered Brown's personal circumstances. The appeal was thus dismissed, and the original conviction and sentence were upheld.

The court ordered that the appeal be dismissed and that the original conviction and sentence imposed by the magistrate remain in effect. The appellant was to bear the costs of the appeal.

Orders