Chilcott v Arnold
[2005] TASSC 114
•25 November 2005
[2005] TASSC 114
CITATION: Chilcott v Arnold [2005] TASSC 114
PARTIES: CHILCOTT, Phillip Ronald
v
ARNOLD, Ashley William Roy
TITLE OF COURT: SUPREME COURT OF TASMANIA
JURISDICTION: APPELLATE
FILE NO/S: LCA 6/2005
DELIVERED ON: 25 November 2005
DELIVERED AT: Burnie
HEARING DATE: 14 November 2005
JUDGMENT OF: Evans J
CATCHWORDS:
Traffic Law – Offences – Particular offences – Alcohol and drug related offences – Tasmania – Other offences – Special circumstances – Need to hear offender on special circumstances following conviction.
Road Safety (Alcohol & Drugs) Act 1970 (Tas), s17(5).
Fisher v Keane (1878) 11 Ch D 353, followed.
Aust Dig Traffic Law [80]
REPRESENTATION:
Counsel:
Appellant: G A Richardson
Respondent: J N Perks
Solicitors:
Appellant: G A Richardson
Respondent: Director of Public Prosecutions
Judgment Number: [2005] TASSC 114
Number of paragraphs: 8
Serial No 114/2005
File No LCA 6/2005
PHILLIP RONALD CHILCOTT v ASHLEY WILLIAM ROY ARNOLD
REASONS FOR JUDGMENT EVANS J
25 November 2005
Police stopped the applicant when riding a small motorcycle powered by a 49cc engine. A breath analysis established that the applicant had a blood alcohol concentration of .118 per cent. He was charged with driving a motor vehicle whilst alcohol was present in his blood in a concentration greater than .05 per cent contrary to the Road Safety (Alcohol & Drugs) Act 1970, s6(1), driving an unregistered vehicle and driving an uninsured vehicle.
At the outset of the hearing of the charges against the applicant his counsel, Mr Richardson, informed the magistrate conducting the hearing that the essential elements of the charges were admitted, that is, that at the relevant time the applicant had a blood alcohol reading of .118 per cent, was riding a motor cycle that was a motor vehicle for the purposes of the applicable legislation, and that the cycle was not registered or insured. Mr Richardson said that the issue was one of honest and reasonable mistake of fact and, in substance, explained that the applicant had believed that as the motorcycle's engine had a capacity of less than 50cc, its use was not subject to the laws in question. Mr Richardson added:
"If I'm wrong about that argument I'm then going to argue that it's special circumstances."
His reference to special circumstances was a reference to s17(5), the effect of which is that when a person is convicted of a breach of s6(1), the minimum fine and the minimum period of disqualification to be imposed may only be reduced:
"if a person who is convicted … satisfies the court which convicted the person that there are special circumstances why the minimum fine … or the minimum period of disqualification … should not be imposed".
The hearing proceeded and at the conclusion of the evidence Mr Richardson made submissions to the learned magistrate to the effect that the applicant should be acquitted on all charges because of his honest and reasonable but mistaken belief that the motor cycle was not a motor vehicle. As Mr Richardson drew to the end of his submissions, the learned magistrate said:
"Just before you sit down Mr Richardson, I assume that if I were to find against your client on that basis that you would then argue that the circumstances I heard fall within s17(5) in relation to count 3 obviously only."
(Count 3 was the charge of contravening s6(1)). Mr Richardson replied "Yes", but made no submissions on the question of special circumstances. The prosecutor then made submissions to the effect that the learned magistrate should reject the defence of honest and reasonable mistake of fact, and as the prosecutor concluded his submissions the learned magistrate enquired, "If I am to find against him on that, what do you say (as to) special circumstances". The prosecutor said that the matter would not fall under the heading of special circumstances. Thereupon the learned magistrate reserved his decision and some days later he published written reasons for decision in the course of which he: rejected the defence of honest and reasonable mistake of fact; convicted the applicant on all charges; addressed the issue of whether special circumstances existed for the purposes of s17(5); and concluded, "I am not persuaded that there were any special circumstances here".
The applicant filed a notice to review challenging his conviction on the s6(1) offence and the finding that there were no special circumstances. At the outset of the hearing of the notice to review, the applicant withdrew the appeal against his conviction. In my view he was quite right to do so. It is clear that if the applicant was mistaken as he contends, then that mistake was one of law and not one of fact, see Ostrowski v Palmer [2004] HCA 30.
The applicant pursued his appeal against the finding of no special circumstances. It is well settled that what may amount to special circumstances cannot be exhaustively enumerated, they may include circumstances of both the offence and the offender, and no one circumstance should be considered in isolation but all are to be considered together: Gela v Cochrane A26/1992, Johnston v Davies (1992) 1 Tas R 183, Davies v Kennedy (1992) 1 Tas R 266 and Bottomley v McDonald [2002] TASSC 27. The decision of Zeeman J in Dellar v Crawford (1992) 62 A Crim R 171 is an apposite illustration of the need to consider all relevant matters before making an adverse determination as to special circumstances. In that case, a magistrate's finding that there were no special circumstances was set aside as the magistrate excluded from his consideration circumstances personal to the offender.
Obviously enough, an issue as to special circumstances only arises after the conviction of an offender for an offence that comes within s17(3). In this case, following the learned magistrate's conviction of the applicant for a breach of s6(1), it was incumbent upon the learned magistrate to give the applicant an opportunity to be heard on his special circumstances claim and to adduce evidence referable to the claim. The right to be heard in palliation of a finding of misconduct has been recognised for well over a century, Fisher v Keane (1878) 11 Ch D 353. This right is of fundamental importance in relation to an issue such as special circumstances which only arises following conviction and as to which it is only then appropriate for an offender to adduce all evidence relied upon referable to the issue.
In this case, the learned magistrate erred in making a finding against the applicant in relation to the issue of special circumstances contemporaneous with his conviction of the applicant. Subsequent to conviction and prior to the making of that finding, the applicant should have been given an opportunity to be heard. It may be that the enquiries made by the learned magistrate in relation to special circumstances when Mr Richardson and the prosecutor were making submissions on conviction, indicated that the learned magistrate might adopt the course that he followed. Such indication as may be gleaned from those enquiries falls far short of providing a basis for establishing that the applicant had waived his right to be heard on the issue of special circumstances if he was convicted.
The motion to review is allowed insofar as the finding that there were not any special circumstances is set aside. The applicant's convictions stand. It is ordered that the sentencing of the applicant in relation to the convictions recorded by the learned magistrate be remitted to another magistrate to be dealt with according to law.
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