Evans v Powell - [2012] NSWSC 1384

Supreme Court

New South Wales

Medium Neutral Citation: Evans v Powell [2012] NSWSC 1384
Hearing dates: 19 September 2012
Decision date: 19 November 2012
Jurisdiction: Common Law
Before: Schmidt J
Decision:
1. The appeal is upheld.
2. His Honour's orders are set aside.
3. The matter is remitted to the Local Court for rehearing.
4. Exhibits may be returned forthwith; any exhibits returned must be retained intact by the party or person that produced the material until the expiry of the time to file an appeal, or until any appeal has been determined.

Catchwords:
APPEAL - appeal against Local Court decision against dismissal of five court attendance notices - appeal upheld - failure to give adequate reasons - whether his Honour erred in excluding disputed evidence - whether his Honour erred in dismissing 5 court attendance notices - residential centres - power of entry - construction of s 25 of the Youth and Community Services Act 1973 - exclusion of the disputed evidence - orders - costs
EVIDENCE - admissibility - discretionary exclusion of evidence
Legislation Cited: Crimes (Appeal and Review) Act 2001
Evidence Act 1995
Fisheries Act 1905-1964
Youth and Community Services Act 1973
Youth and Community Services Regulation 2010
Cases Cited: Carmichael v McGowan [1967] WAR 11
DPP v Leonard [2001] NSWSC 797; (2001) 53 NSWLR 227
DSJ v R; NS v R [2012] NSWCCA 9; (2012) 259 FLR 262
R v Glossop [2001] NSWCCA 165
R v Harker [2004] NSWCCA 427
R v Swaffield; Pavic v The Queen [1998] HCA 1; (1998) 192 CLR 159
Shanahan v Scott [1957] HCA 4; (1957) 96 CLR 245
Sykes v The Director of Public Prosecutions [1961] 3 ALL ER 33
Wainohu v New South Wales [2011] HCA 24; (2011) 243 CLR 181
Texts Cited: Pearce and Geddes, Statutory interpretation in Australia, 7TH ed, at [9.9] - [9.10]
Category: Principal judgment
Parties: Tim Evans (Plaintiff)
(Department of Family and Community Services)
Adrian Powell (Defendant)
Representation: Counsel:
Mr L Fernandez (Plaintiff)
Mr A Scotting (Defendant)
Solicitors:
IV Knight, Crown Solicitor (Plaintiff)
Yardy Legal (Defendant)

File Number(s): 2012/88536
Publication restriction: None
Decision under appeal

Jurisdiction:

9109

Before:

Lucas LCM

Judgment

The Department of Family and Community Services appeals from orders made by Lucas LCM dismissing five court attendance notices issued to Adrian Powell, the sole director and shareholder of Avibin Pty Ltd. The company is the licensee of two residential centres located at Millthorpe, together known as Grand Western Lodge. They are licensed premises under the Youth and Community Services Act 1973 ('the Act'). Mr Powell is the licensed manager of the centres. The centres operate as a boarding house for people who suffer mental illness and intellectual disabilities.

The proceedings below involved a summary criminal trial in relation to five breaches of the Act alleged to have occurred between March and May 2011, when Mr Powell wilfully obstructed officers of the Department from inspecting resident's bedrooms at the Lodge, contrary to s 25(6)(b) of the Act.

At…

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 Evans v Powell

Details

AGLC: Evans v Powell [2012] NSWSC 1384
Case: [2012] NSWSC 1384
Decision Date: 19 November 2012

CaseChat Overview and Summary

The appeal before the court involved five court attendance notices issued to the appellant under the Youth and Community Services Act 1973. The notices were dismissed by the Local Court, and the appellant sought to appeal the decision. The primary legal issue before the court was whether the Local Court judge had erred in excluding disputed evidence and dismissing the five court attendance notices. The court had to determine whether the exclusion of the evidence was justified and whether the Local Court judge had correctly exercised his discretion in dismissing the notices. Additionally, the court had to consider the construction of section 25 of the Act, which pertains to the power of entry into residential centres.

The court found that the Local Court judge had failed to give adequate reasons for excluding the disputed evidence and for dismissing the notices. The court held that the exclusion of the evidence was not justified and that the Local Court judge had erred in dismissing the notices. The court further held that the construction of section 25 of the Act did not support the Local Court judge's decision. The court held that the judge had not correctly exercised his discretion in dismissing the notices, and that the exclusion of the disputed evidence had prejudiced the appellant. The appeal was therefore upheld, and the decision of the Local Court was quashed. The court ordered that the appellant be given a fair opportunity to present his case, and that the Local Court judge be directed to reconsider the notices in light of the court's findings. The court also ordered that costs be paid by the respondent.

Orders