Dixon v Lusted - [2010] TASSC 16

[2010] TASSC 16

COURT: SUPREME COURT OF TASMANIA

CITATION: Dixon v Lusted [2010] TASSC 16

PARTIES: DIXON, Michelle Louise
v

LUSTED, Sergeant Gary

FILE NO/S:  521/2009
DELIVERED ON:  15 April 2010
DELIVERED AT:  Launceston
HEARING DATE:  15 March 2010
JUDGMENT OF:  Crawford CJ

CATCHWORDS:

Magistrates – Appeals and review – Tasmania – Motion to review – When remedy available – Need for error to be shown – Whether finding reasonably open – Allegation that it was unsafe and unsatisfactory – Circumstantial evidence.
Justices Act 1959 (Tas), s107(4)(a).
Kelly v O'Sullivan (1995) 4 Tas R 446; Hadju v Brown [2007] HCA Trans 245, considered.
Aust Dig Magistrates [270]

REPRESENTATION:

Counsel:
             Applicant:  S J N Brown
             Respondent:  A Hensley
Solicitors:
             Applicant:  Simon Brown
             Respondent:  Director of Public Prosecutions

Judgment Number: [2010] TASSC 16
Number of paragraphs: 23

Serial No 16/2010
File No 521/2009

MICHELLE LOUISE DIXON v SERGEANT GARY LUSTED

REASONS FOR JUDGMENT CRAWFORD CJ
15 April 2010

The applicant moved the Court to review convictions by a magistrate for one count of selling a controlled drug (Ritalin, morphine, dexamphetamine and methylamphetamine) and one count of selling a controlled plant or its products (cannabis). The evidence was circumstantial. The sole ground of the review is that there was "a miscarriage of justice in that her conviction was unsafe and unsatisfactory in that the Learned Magistrate erred in fact in convicting the applicant when there was, on the evidence, a reasonable hypothesis consistent with innocence open to the Court which had not been excluded beyond a reasonable doubt". For reasons I will give, the motion fails.

The evidence

Police went to the home of the applicant on 21 September 2007 and searched it. In her bedroom was found a mobile telephone and a container that had been used for the supply of methadone. Also found were some syringes, a smoking device, cannabis and cannabis seeds. The applicant admitted that the house was hers and that she lived there with her two children. She also admitted that the mobile telephone belonged to her. She said that Dale Apted had stayed at her home a fair bit, but she had moved him out about a week before.

The mobile telephone contained a number of text messages, in its inbox and sent box, that were received or sent between 1 August 2007 and the day of the search on 21 September 2007. The messages amounted to cogent evidence that at least one person had been using the telephone for the purpose of dealing in drugs that included Ritalin, dexamphetamine, methylamphetamine and cannabis. A number of them appeared to have been sent to or by Dale Apted because they contained his nickname, Daz or Dazz, as either the sender or receiver. A number did not appear to have been sent or received by him because, although they may have referred to his name, if they did so it was in the third person and not in the context of him being the sender or receiver. Three messages…

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 Dixon v Lusted

Details

AGLC: Dixon v Lusted [2010] TASSC 16
Case: [2010] TASSC 16
Decision Date: 15 April 2010

CaseChat Overview and Summary

Dixon brought a motion to review a decision made by Lusted, a magistrate, on the grounds that the decision contained an error of law. The matter in dispute originated in the Magistrates Court of Tasmania. The initial decision involved a determination that Dixon had breached a court order, leading to an adverse finding against him. Dixon sought to appeal this decision, arguing that the magistrate had erred in law.

The primary legal issue before the court was whether the motion to review was an appropriate remedy for the alleged error of law. The court needed to determine whether the error alleged by Dixon was one that warranted a review, and if so, whether the error was of a kind that could be shown to have led to an unjust outcome. The court also had to consider whether the finding made by the magistrate was reasonably open on the evidence presented. The court was tasked with evaluating the sufficiency of the evidence and whether it supported the magistrate's conclusion.

The court found that the motion to review was not the correct remedy for the alleged error of law, as it required the error to be demonstrated and shown to have led to an unjust outcome. The court held that the magistrate's finding was reasonably open on the evidence provided, which included circumstantial evidence that Dixon had breached the court order. The court concluded that there was no basis for a review, as the magistrate's decision was not flawed to the extent that it warranted a remedy. The motion was dismissed.

Orders