Clarke v Barrett

[1988] TASSC 46

Serial No 38/1988
List “A”

COURT:                 SUPREME COURT OF TASMANIA

CITATION:            Clarke v Barrett [1988] TASSC 46; A38/1988

PARTIES:  CLARKE
  v
  BARRETT

FILE NO/S:  87/1988
DELIVERED ON:  2 September 1988
JUDGMENT OF:  Neasey J

Judgment Number:  A38/1988
Number of paragraphs:  10

Serial No 38/1988

List "A"

File No LCA 87/1988

CLARKE v BARRETT

REASONS FOR JUDGMENT  NEASEY J

2 September 1988

1. The applicant, Mrs. Pamela Clarke, seeks a review of orders made by magistrate Mr Hannon in the Court of Petty Sessions at Hobart on 9 March 1987. By those orders, the applicant was convicted on three charges of obstructing public officers in the execution of their duty, contrary to s34B(2)(a) of the Police Offences Act 1935. The alleged acts amounted to endeavouring to prevent these public officers carrying out a process of execution on the applicant's property pursuant to s100 of the Local Courts Act 1896, for the purpose of collecting fines and costs previously imposed upon the applicant for other offences.

1. The grounds on which the applicant seeks to quash these orders are that the learned magistrate erred in law in finding that at the relevant time the public officers concerned were acting in the execution of their duty within the meaning of the relevant section of the Police Offences Act; or that, alternatively, he erred in law in failing to consider whether or not they were acting in the execution of their duty within the meaning of the section.

1. The relevant facts are as follows. On 11 September 1987, the applicant was convicted by magistrate Mr. Parker on two charges; one of keeping hens without a licence, in breach of s3(1)(a) of the Egg Industry Stabilization Act 1973, and a second of selling, as an egg producer, eggs the property of the Egg Marketing Board, contrary to s22(b) of the Marketing of Primary Products Act 1945. The applicant pleaded not guilty and was convicted. The magistrate imposed a fine and costs on each charge and ordered a counsel's fee to be paid. He then asked the applicant whether she wished to have time to pay the penalties imposed, whereupon the applicant replied that she would not pay but preferred to go to gaol. His Worship then ordered that the Clerk of Petty Sessions carry out the relevant procedure under s92A of the Justices Act 1959, by drawing up and sealing a memorandum of the convictions and orders and transmitting them with the prescribed request to the Registrar of the Court of Requests under the Local Courts Act 1896. I have already held in an associated matter, Clark v Titmus, that the learned magistrate had no jurisdiction to make that order, and that it should be quashed.

1. However, the Clerk of Petty Sessions, Mr D J England, did in fact carry out the s92A procedure on the following day, 12 September 1987. Thereupon, the Registrar of the Court of Requests in due course issued a warrant of execution against the personal property of the applicant, and such execution was carried out by these public officers on 1 October 1987. In the course of their proceeding with that execution the applicant did the acts for which she was convicted of wilful obstruction.

1. It is not disputed that when the magistrate after imposing the fines asked the applicant whether she wished time to pay, and was told she did not, he was acting in accordance with s78(2)(c) of the Justices Act. However, it is contended for the applicant that the magistrate nevertheless did not "proceed under subsection (2)" of the Act. Section78(3) of the Act provides that where justices "who have not proceeded under subsection (2)" have omitted to grant a defendant time to pay a sum of money as required by subs(1) of s78, the defendant shall be deemed to have been granted a period of 14 days within which to pay that sum, and shall be liable to a period of imprisonment for non–payment.

1. The contention is that if the magistrate could be said to have proceeded under subs(2), it would mean that the Act provides no procedure whereby a defendant who has been proceeded against under subs(2) can be imprisoned for non–payment of a fine, whereas if he has been proceeded against under subs(1) there is an elaborate provision for imprisonment for non–payment if the fine is not paid after the expiration of time allowed. I do not accept that submission. It seems to me that s79(3) makes such provision. Its terms are as follows:

"(3)    Where the time when payment is required by the original conviction or order, as varied, if it had been varied, is past and payment has not been made as directed or ordered, the clerk of petty sessions may issue a warrant to apprehend the defendant as provided in section 78(4)."

1. Section 78(4) begins a set of proceedings dealing with imposition of imprisonment where a defendant has been granted time to pay and has failed to pay within the time. Where time is not allowed for payment, then it appears to me that payment is "required immediately" – cf s79(4), and if payment is not made on the same day, s79(3) applies.

1. But whether that is so or not, in my opinion the learned magistrate did proceed under s78(2). The expression in s78(3) "where justices who have not proceeded under subs(2) have omitted to grant a defendant time to pay ... " means in effect, where the course of proceedings has been such that s78(1) and not s78(2) applies. That was so in the present matter.

1. Thus the fines and costs imposed by the magistrate became payable immediately. However, he then ordered the Clerk of Petty Sessions to carry out the relevant procedure under s92A, which he had no jurisdiction to order. Mr. England, the Clerk of Petty Sessions, deposed in an affidavit that he believed the learned magistrate was without jurisdiction to make the order, but nevertheless he, M. England, proceeded on the following day to exercise what he understood to be his independent power under s92A, with the results which I set out earlier. It is contended for the applicant that the Clerk of Petty Sessions has no such independent power under s92A, but I do not agree. The Clerk does have an independent power under s92A, because recovering fines by execution is an alternative to enforcement of payment of fines by imprisonment, whether or not time has been allowed to pay. In my view it is plain that the Clerk of Petty Sessions is entitled on the day following the imposition of the fine, if it remains unpaid, to exercise the power under s92A in a case where s78(2) applies and time to pay has not been allowed. That is the case here.

1. Upon that basis, the steps taken by Mr. England to put in operation the procedure under s92A were valid, and the warrant of execution was valid. The motion to review fails, and should be dismissed.