D v Cordwell - [2002] TASSC 90

[2002] TASSC 90

CITATION: D v Cordwell [2002] TASSC 90

PARTIES:  D
  v
  CORDWELL, Mandy Lee

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  APPELLATE
FILE NO/S:  LCA 73/2002
DELIVERED ON:  28 October 2002
DELIVERED AT:  Hobart
HEARING DATES:  17 October 2002
JUDGMENT OF:  Blow J

CATCHWORDS:

Magistrates - Jurisdiction and procedure generally - Jurisdiction, powers and duties - Constitution of court and generally - Tasmania - Magistrates Court - Charge of simple offence against youth - Not dealt with in Youth Justice Division.

Aust Dig Magistrates [7]

Magistrates - Jurisdiction and procedure generally - Procedure - Information and complaint - Form and sufficiency - Generally - Description of offence - No reference to section creating offence.

Pointon v Cox (1926) 136 LT 506, distinguished.
Thornley v Clegg [1982] Crim LR 523; Willing v Hollobone (No 2) (1975) 11 SASR 118; Wickham v Cole [1957] Tas SR 111; Ex parte Parkinson (1909) 9 SR(NSW) 174, referred to.
Justices Act 1959 (Tas), s31(1), (2).
Aust Dig Magistrates [46]

REPRESENTATION:

Counsel:
             Applicant:  M I Evans
             Respondent:  F C Neasey
Solicitors:
             Applicant:  Beeton & Mansell
             Respondent:  Director of Public Prosecutions

Judgment Number: [2002] TASSC 90
Number of Paragraphs: 19

Serial No 90/2002
File No LCA 73/2002

D v MANDY LEE CORDWELL

REASONS FOR JUDGMENT BLOW J

28 October 2002

On 13 June 2000 the respondent signed a complaint on oath, purportedly pursuant to the Justices Act 1959, alleging that the applicant "did on the 18th day of January 2000 at Hobart in Tasmania use a motor vehicle, namely, a 1985 Green Holden Commodore sedan station wagon registration number ED 5203, the property of Peter Michael INGRAM, without the consent of that person or some person in lawful charge of the vehicle and having authority to give that consent." That document did not include any reference to the legislative provision alleged to have been contravened by the applicant. On the day it was signed, a warrant was issued for his arrest. That warrant was executed some 12 months later. He appeared before a magistrate on 22 June 2001. There followed a series of appearances before the same magistrate, during which the applicant pleaded not guilty on two occasions. On 1 August 2002 his counsel submitted that the complaint should be dismissed for two reasons: (i) that, although the applicant was under the age of 18 years at the time of the alleged offence, the proceedings had not been brought or dealt with in the Youth Justice Division of the Magistrates Court; and (ii) that the complaint was a nullity because it did not refer to any legislative provision alleged to have been contravened. The learned magistrate refused to dismiss the complaint, and adjourned it for a hearing. The applicant has moved for the review of the learned magistrate's determination.

The Youth Justice Division of the Magistrates Court

The complaint of 18 June 2000 did not mention the Youth Justice Division of the Magistrates Court. Each time that the applicant appeared before a magistrate,…

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 D v Cordwell

Details

AGLC: D v Cordwell [2002] TASSC 90
Case: [2002] TASSC 90
Decision Date: 28 October 2002

CaseChat Overview and Summary

In D v Cordwell, the Supreme Court of Tasmania considered an appeal against a magistrate's decision not to dismiss a complaint against the applicant, D. The respondent, Cordwell, had signed a complaint alleging that D used a motor vehicle without consent, but the complaint did not reference the relevant legislative provision. D argued that the complaint should be dismissed because he was under 18 at the time of the alleged offence, and the proceedings had not been brought in the Youth Justice Division of the Magistrates Court. Additionally, D contended that the complaint was a nullity due to the omission of the legislative provision. The court had to decide whether the proceedings should have been brought in the Youth Justice Division and whether the failure to specify the legislative provision rendered the complaint invalid.

The court first examined whether the Youth Justice Division had exclusive jurisdiction to hear charges against youths. It found that while the Youth Justice Division had jurisdiction, it did not have exclusive jurisdiction, and therefore, the failure to bring the proceedings in that division did not invalidate them. The court then considered whether the omission of the legislative provision in the complaint rendered it invalid. It concluded that, under the Justices Act, the failure to specify the legislative provision constituted a defect but not one that could lead to injustice or prejudice to D. The court found that D, who was represented by competent counsel, was not prejudiced by the defect. Therefore, the magistrate's decision not to dismiss the complaint was upheld.

The court's reasoning was based on the statutory provisions of the Justices Act, which allow for the amendment of complaints that are defective but not prejudicial. The authorities cited supported the conclusion that the defect in the complaint did not invalidate it. The court dismissed the motion to review the magistrate's decision and expected the hearing to be conducted in the Youth Justice Division.

Orders