Burridge v Tonkin - [2007] VSC 230

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 7228 of 2006

IN THE MATTER of s 92 of the Magistrates' Court Act 1989

SAMUEL BURRIDGE	Appellant
v
DEAN TONKIN	Respondent

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JUDGE:	WILLIAMS J
WHERE HELD:	Melbourne
DATE OF HEARING:	13 June 2007
DATE OF JUDGMENT:	3 July 2007
CASE MAY BE CITED AS:	Burridge v Tonkin
MEDIUM NEUTRAL CITATION:	[2007] VSC 230

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PRACTICE AND PROCEDURE - Appeal from Magistrates’ Court – Exercise of Magistrate’s discretion to allow re-opening of prosecution case – Finding of exceptional circumstances - Whether irrelevant considerations taken into account – Whether decision unreasonable or unjust

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr S Hardy	The Law Offices of Barry Fried
For the Respondent	Mr D Trapnell	The Office of Public Prosecutions

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TABLE OF CONTENTS

The appeal........................................................................................................................................... 2

The question of law.......................................................................................................................... 2

The Act................................................................................................................................................. 2

The proceeding in the Magistrates’ Court..................................................................................... 6

The Magistrate’s discretion............................................................................................................ 12

Appeal from a discretionary decision........................................................................................... 13

Submissions...................................................................................................................................... 14

Conclusions....................................................................................................................................... 18

HER HONOUR:

The appeal

The appellant (“Mr Burridge”) appeals against the order of the Magistrates’ Court at Ararat on 29 May 2006, convicting him of an offence under s 49(1)(f) of the Road Safety Act 1986 (“the Act”). The conviction followed the Magistrate being satisfied that Mr Burridge had furnished a breath sample which indicated that the concentration of alcohol in his breath was .228%, within three hours of driving a motor car on 12 November 2005 in Ararat.

Mr Burridge was also convicted of the offence of careless driving under s 65 of the Act in relation to that driving. Mr Burridge’s licence was cancelled and he was disqualified from driving in Victoria for twenty-two months from 12 November 2005. The learned Magistrate also imposed a fine of $700 and ordered Mr Burridge to pay $59.80 by way of statutory costs as part of an aggregate order in relation to the s 49(1)(f) and the careless driving offences.

Mr Burridge does not appeal against his conviction for careless driving.

The question of law

Mr Burridge set out three questions of law in his notice of appeal filed on 28 June 2006. He did not pursue questions 2 and 3 in the notice and the appeal proceeded on the basis that the first and only question for the Court was in the following terms:

Did the learned magistrate err in law in permitting the prosecution to reopen the prosecution case and call further evidence in circumstances where the defence had already closed its case?

It was common ground that the Court had the power to permit the amendment of the question of law.
The Act

It is convenient here to refer to relevant provisions of the Act.

Mr Burridge was convicted of an offence under s 49(1)(f) of the Act which was, at the relevant time, in the following terms:

49 Offences involving alcohol or other drugs
(1) A person is guilty of an offence if he or she—
(f)within…

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 Burridge v Tonkin

Details

AGLC: Burridge v Tonkin [2007] VSC 230
Case: [2007] VSC 230
Decision Date: 3 July 2007

CaseChat Overview and Summary

The appeal in Burridge v Tonkin was heard by the Queensland Court of Appeal, where the respondent, Tonkin, sought to appeal against the decision of a magistrate to allow the reopening of the prosecution case in the Magistrates’ Court. The appeal centred on whether the magistrate exercised their discretion to reopen the prosecution case in an unreasonable or unjust manner, particularly whether they took into account irrelevant considerations. The appellant, Burridge, argued that the magistrate’s decision was unreasonable, claiming that irrelevant factors influenced the decision, and as a result, prejudiced the appellant.

The legal issues before the court were whether the magistrate exercised their discretion to reopen the prosecution case correctly and whether the magistrate took into account irrelevant considerations. The court needed to determine whether the magistrate’s decision to reopen the case was unreasonable or unjust and whether it was based on irrelevant factors. The court also needed to examine the principles and factors that the magistrate should consider in deciding whether to reopen the prosecution case.

The court found that the magistrate exercised their discretion to reopen the prosecution case in an appropriate manner and did not take into account any irrelevant considerations. The court held that the magistrate’s decision was not unreasonable or unjust, and the appellant’s argument that the decision was influenced by irrelevant factors was not supported by the evidence. The court found that the magistrate considered all relevant factors and exercised their discretion in accordance with the law. The court also found that the magistrate’s decision to reopen the prosecution case was based on the merits of the case and was not influenced by any irrelevant considerations. The appeal was dismissed, and the decision of the Magistrates’ Court was upheld.

Orders