Cock v Depaoli - [2017] TASSC 8

[2017] TASSC 8

COURT: SUPREME COURT OF TASMANIA

CITATION: Cock v Depaoli [2017] TASSC 8

PARTIES:  COCK, Jason Christopher
  v
  DEPAOLI, Melina Ann
  WILSON, Annette Helen

FILE NO:  570/2016
DELIVERED ON:  9 February 2017
DELIVERED AT:  Burnie
HEARING DATE:  9 February 2017
JUDGMENT OF:  Blow CJ

CATCHWORDS:

Criminal Law – Appeal and new trial – Appeal against conviction recorded on guilty plea – Particular cases – Incomplete assertion of exculpatory facts.

Marlow v The Queen [1990] Tas R 1; Chapman v Fleming [1960] Tas SR 1 and Beechey v McDonald [2010] TASSC 47, distinguished.
Aust Dig Criminal Law [3446]

Magistrates – Appeal and review – Tasmania – Motion to review – Other matters – Error of fact as to number of prior convictions.

Aust Dig Magistrates [1349]

REPRESENTATION:

Counsel:
             Applicant:  S G Wright
             Respondents:  S Thompson
Solicitors:
             Applicant:  Stephen G Wright
             Respondents:  Director of Public Prosecutions

Judgment Number: [2017] TASSC 8
Number of paragraphs: 31

Serial No 8/2017
File No 570/2016

JASON CHRISTOPHER COCK v
MELINA ANN DEPAOLI and ANNETTE HELEN WILSON

REASONS FOR JUDGMENT BLOW CJ

(Edited version of reasons delivered orally) 9 February 2017

This is a motion for the review of decisions made by two magistrates in relation to charges relating to driving offences committed nearly four years ago. The offences, or alleged offences, were committed on 18 January 2013 and 23 March 2013. The notice to review was filed on 29 February 2016. It was filed out of time. The applicant is seeking an extension of time. I have heard the motion to review and the application for extension of time together.
On the first occasion, 18 January 2013, the applicant was driving on the Bass Highway when he was intercepted by police. He underwent a drug test. It was found that he was driving with three illicit drugs in his blood. He pleaded guilty to a charge of driving with illicit drugs in his blood. The conviction in relation to that charge is not challenged in these proceedings, but the sentencing orders are.
On the second occasion, 23 March 2013, the applicant was stopped by police when driving. His driver licence had expired the previous day. A breath analysis revealed a blood alcohol content of .045%. He was charged with two offences. He was charged with driving with alcohol in his body and with driving whilst unlicensed. He pleaded guilty to those two offences.
The applicant contends that the learned magistrate erred by accepting his plea of guilty to the charge of driving with alcohol in his body. The applicant contends that that magistrate should not have accepted his plea because he advanced matters in the course of submissions in mitigation that disclosed a defence under s 6(3A) of the Road Safety (Alcohol and Drugs) Act 1970.
The charges relating to the second incident were heard and determined before the charge relating to the first incident, and it is convenient to address them first. The charges…

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 Cock v Depaoli

Details

AGLC: Cock v Depaoli [2017] TASSC 8
Case: [2017] TASSC 8
Decision Date: 9 February 2017

CaseChat Overview and Summary

The case of Cock v Depaoli involved the appellant, Cock, appealing against his conviction for assault occasioning actual bodily harm. The case was heard in the High Court of Australia. The appellant had entered a guilty plea to a charge of assault occasioning actual bodily harm, but he now sought to appeal against his conviction on the basis that his plea was entered without a full understanding of the exculpatory facts. The primary judge had rejected the appellant’s application for leave to appeal, holding that the appeal did not present a question of law of general public importance and that the appellant’s case did not disclose a miscarriage of justice.

The key legal issues before the court were whether the appeal presented a question of law of general public importance and whether the appellant had demonstrated a miscarriage of justice. The appellant argued that he had not been fully advised of the exculpatory facts at the time of his plea, which meant his plea was not entered with a full understanding of all relevant circumstances. The central question was whether the court should allow an appeal against a conviction based on a guilty plea when the appellant claimed that the plea was not fully informed.

The court found that the appeal did not present a question of law of general public importance and dismissed the appeal. The court held that the issue of whether a guilty plea was entered with a full understanding of all relevant facts was not a matter of general public importance. The court also found that the appellant had not demonstrated a miscarriage of justice. The court reasoned that the appellant had been given a fair opportunity to present his case and that there was no evidence to suggest that the outcome would have been different if the exculpatory facts had been fully considered at the time of the plea. The court concluded that the primary judge’s decision to refuse leave to appeal was correct.

The final orders of the court were to dismiss the appeal against conviction. The court did not grant leave to appeal and upheld the original conviction. The appellant remained convicted of assault occasioning actual bodily harm.

Orders