Clark v Bluett - [2016] ACTSC 312

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	Clark v Bluett
Citation:	[2016] ACTSC 312
Hearing Date:	24 October 2016
DecisionDate:	27 October 2016
Before:	Elkaim J
Decision:	The following convictions are set aside: (a) CC14/9236 – Possessing a prohibited firearm (shotgun) whilst not authorised. (b) CC14/9239 – Possessing a prohibited weapon (knuckle duster) whilst not authorised. (c) CC14/9240 – Possessing a prohibited weapon (extendable baton) whilst not authorised. (d) CC14/9241 – Possessing ammunition for a firearm whilst not authorised.
Catchwords:	CRIMINAL LAW – APPEAL – JURISDICTION, PRACTICE AND PROCEDURE – appeal from Magistrates Court – appeal against conviction – validity of evidentiary certificates – whether the presumption of regularity applies – whether a magistrate has the power to amend defective evidentiary certificates
Legislation Cited:	Evidence Act 1995 (NSW), s 138 Firearms Act 1996 (ACT), ss 33, 35, 269(1)(q), 269(2) Prohibited Weapons Act1996 (ACT), s 17(1)(a)
Cases Cited:	Cassell v The Queen [2000] HCA 8; 201 CLR 189 Connolly v Allan [2011] ACTSC 170; 212 A Crim R 320 Chiekho v The Queen [2008] NSWCCA 191; 75 NSWLR 323 R v Dalley [2002] NSWCCA 284; 132 A Crim R 169 Dixon v LeKich [2010] QCA 213; 56 MVR 70 Mowdy v State of Western Australia [2007] WASCA 165; 176 A Crim R 85
Parties:	Michael Wayne Clark (Appellant) Grant Matthew Bluett (Respondent)
Representation:	Counsel Mr J Pappas (Appellant) Mr M Fernandez (Respondent)
Solicitors Ben Aulich & Associates (Appellant) ACT Director of Public Prosecutions (Respondent)
File Number:	SCA 44 of 2016
Decision under appeal:	Court/Tribunal: ACT Magistrates Court Before: Special Magistrate Doogan Date of Decision: 17 June 2016 Case Title: Bluett v Clark Court File Numbers: CC14/9236, CC14/9239, CC14/9240, CC14/9241

ELKAIM J:

This is an appeal from a decision of Special Magistrate Doogan (the “magistrate”) given on 17 June 2016. The decision followed the hearing of a prosecution against the appellant on four charges relating to the unlawful possession of assorted items.

The appellant was convicted of the following offences:

(a)CC14/9236 – Possessing a prohibited firearm (shotgun) whilst not authorised;
(b)CC14/9239 – Possessing a prohibited weapon (knuckle duster) whilst not authorised;
(c)CC14/9240 – Possessing a prohibited weapon (extendable baton) whilst not authorised; and
(d)CC14/9241 – Possessing ammunition for a firearm whilst not authorised.

The appellant has not yet been sentenced.

The starting point for this appeal is to state what my role is. To do so, I adopt the following paragraphs from the decision of Refshauge ACJ in Connolly v Allan [2011] ACTSC 170; 212 A Crim R 320, where his Honour said:

[12] So far as the appeal against conviction is concerned, it is a rehearing. That is, the appeal court must determine whether the decision of the Magistrates Court is wrong, by that court falling into error of law, making a finding of fact that is clearly wrong or exercising a discretion on a wrong principle or in a way that is clearly wrong.
[13] This court, as…

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 Clark v Bluett

Details

AGLC: Clark v Bluett [2016] ACTSC 312
Case: [2016] ACTSC 312
Decision Date: 27 October 2016

CaseChat Overview and Summary

The appeal before the court was brought by the appellant, Clark, against his convictions in the Magistrates Court of Victoria. The convictions related to various charges of possessing prohibited weapons and ammunition. The respondent, Bluett, was the prosecutor in the matter. The primary issue for the court was to determine the validity of the evidentiary certificates underpinning Clark’s convictions, and whether the presumption of regularity applied to these certificates. Additionally, the court needed to decide if a magistrate had the authority to amend defective evidentiary certificates. The appellant contended that the certificates were fundamentally flawed, lacking necessary details and not meeting statutory requirements, and thus, they should not be given effect.

The court examined the legal principles governing evidentiary certificates and the presumption of regularity. It noted that while the presumption of regularity usually applies to the validity of court proceedings, this presumption could be rebutted if there were substantial irregularities affecting the fairness of the trial. The court further explored whether a magistrate had the power to rectify defects in evidentiary certificates. It concluded that such power was not available to a magistrate and that defective certificates could not be validated by any subsequent amendment. Consequently, the court found that the evidentiary certificates were indeed defective and did not comply with the statutory requirements, leading to a significant procedural flaw in the trial.

Based on its findings, the court held that the presumption of regularity did not apply due to the substantial procedural irregularities. The court ruled that the convictions could not stand because they were based on invalid evidentiary certificates. Accordingly, the court set aside all of Clark’s convictions. The detailed reasoning and ultimate decision of the court underscore the importance of adherence to statutory requirements in evidentiary certificates and the potential consequences of failing to comply with these requirements. The court's final orders were to set aside the convictions listed in the appeal.

Orders

Orders of the court

1. The following convictions are set aside:

(a) CC14/9236 – Possessing a prohibited firearm (shotgun) whilst not authorised.

(b) CC14/9239 – Possessing a prohibited weapon (knuckle duster) whilst not authorised.

(d) CC14/9241 – Possessing ammunition for a firearm whilst not authorised.

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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