Statutes—General words—"Notwithstanding any other Act"—Statutory offence—Imprisonment prescribed by one Act as minimum penalty for subsequent offence—Court authorized by another Act to dismiss a proven offence without proceeding to conviction—Road Traffic Act, 1961-1967 (S.A.), s. 47*—Offenders Probation Act, 1913-1963 (S.A.), s. 4 (1)*—Acts Interpretation Act, 1915-1936 (S.A.), s. 30. Justices (S.A.)—Power to dismiss a complaint where charge proved—Extent of power where another Act prescribes minimum penalty for subsequent offence—Road Traffic Act, 1961-1967 (S.A.), s. 47*—Offenders Probation Act, 1913- 1963 (S.A.), s. 4 (1)*—Acts Interpretation Act, 1915-1936 (S.A.), s. 30. Justices (S.A.)—Discretion—Power to dismiss a complaint where charge proved—Sufficiency of evidence—"Antecedents"—Offenders Probation Act, 1913-1963 (S.A.), s. 4 (1)*—Acts Interpretation Act, 1915-1936 (S.A.), s. 30.
Decisions
June 11. The following written judgments were delivered:- BARWICK C.J., KITTO AND OWEN JJ. This is an appeal by special leave against an order made by the Full Court of the Supreme Court of South Australia allowing an appeal from an order made by Bray C.J. dismissing an appeal from a court of summary jurisdiction (Liddy v. Cobiac: Bray C.J.'s judgments of 19th and 26th July 1968 and Full Court's judgments of 16th January 1969 (1969) SASR 6 ). (at p261)
2. The appellant was prosecuted by the respondent before a court of summary jurisdiction upon a complaint charging three offences against the Road Traffic Act, 1961-1967 (S.A.). The first count, based upon s. 47 (1) (a) of the Act, charged the appellant with driving a motor vehicle while he was so much under the influence of intoxicating liquor as to be incapable of exercising effective control of the vehicle. The second count, based upon s. 43 (3) (a), charged that he being the driver of a motor vehicle when, owing to the presence of that vehicle on a road, an accident occurred whereby damage was caused to a motor car, did not stop his vehicle forthwith. The third count, based on s. 45, alleged that he had driven a motor vehicle on a road without due care or attention or without reasonable consideration for other persons using the road. (at p261)
3. Each of the charges arose out of certain happenings on 2nd February 1968 when the appellant, then a man of seventy-two years of age, drove his car on a public street while under the influence of liquor, collided with another car which was parked in the street and having done so failed to stop. The learned magistrate convicted the appellant on the second and third counts. On the second count he imposed a fine of $100, ordered the appellant to pay a substantial sum by way of costs and disqualified him from holding or obtaining a driver's licence for twenty years. On the third count he disqualified him from holding or obtaining a driver's licence until further order. As to the first count, his Worship thought that the charge was…
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.
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AGLC
Cobiac v Liddy [1969] HCA 26
Case
[1969] HCA 26
Decision Date
CaseChat Overview and Summary
The High Court of Australia considered a dispute between Cobiac, the appellant, and Liddy, the respondent, concerning the respondent's alleged trespass to the appellant's land. The core of the disagreement revolved around the respondent's right to enter the appellant's property to remove certain fencing materials.
The central legal question before the Court was whether the respondent possessed a legal right, such as a licence or easement, to enter the appellant's land for the purpose of removing the fencing. This required the Court to examine the nature of any purported agreement or understanding between the parties regarding the fencing and its ownership, and whether such an arrangement conferred a right of entry that would defeat a claim of trespass.
The Court determined that no such legal right of entry had been established. It was held that the respondent's actions constituted a trespass, as there was no evidence of a licence, express or implied, or any other legal basis that would permit the removal of the fencing from the appellant's land. The principles of property law regarding possession and the need for lawful justification for entry were applied.