Gandini v Judges - [2023] TASSC 13

[2023] TASSC 13

COURT:	SUPREME COURT OF TASMANIA
CITATION:	Gandini v Judges [2023] TASSC 13
PARTIES:	GANDINI, Daniel Victor
v
JUDGES, Russell
FILE NO:	2884/2022
DELIVERED ON:	22 May 2023
DELIVERED AT:	Launceston
HEARING DATE:	12 May 2023
JUDGMENT OF:	Pearce J
CATCHWORDS:

Magistrates – Appeal and review – Tasmania – Motion to review – Other matters – Refusing oral fluid test – Sentence and penalty – Mandatory minimum penalty not applicable.

Road Safety (Alcohol and Drugs) Act 1970 (Tas), ss 17(3), 17A.
Aust Dig Magistrates [1349]

Traffic Law – Offences – Particular offences – Alcohol and drug related offences – Tasmania – Driving with prescribed illicit drug in blood and other offences – Refusing oral fluid test and refusing direction to submit to sample of blood – Sentence and penalty – Mandatory minimum penalty not applicable.

Road Safety (Alcohol and Drugs) Act 1970 (Tas), ss 17(3), 17A.

Aust Dig Traffic Law [1159]

REPRESENTATION:

Counsel:

Applicant: In person
Respondent: L Fox

Solicitor:

Respondent: Director of Public Prosecution

Judgment Number:	[2023] TASSC 13
Number of paragraphs:	16

Serial No 13/2023 File No 2884/2022

DANIEL VICTOR GANDINI v RUSSELL JUDGES

REASONS FOR JUDGMENT

PEARCE J
22 May 2023

1 By this motion to review the applicant challenged a sentencing order made by a magistrate, Ms L Topfer, on 2 August 2022. The part of the order under challenge is that which disqualified the applicant from driving. The applicant is unrepresented. He sought to place a great deal of material before this Court in support of the motion but much of it is irrelevant or incomprehensible or both. A brief summary of the relevant circumstances is sufficient.
2 On 8 March 2020 a vehicle being driven by the applicant on a public street in Latrobe was intercepted by the police. He was directed, in accordance with the Road Safety (Alcohol and Drugs) Act 1970, s 7B(1), to undergo an oral fluid test. He claimed to have been illegally stopped and refused. He then abused the police and resisted being placed in the divisional van. The applicant was then taken to the Mersey Community Hospital where he refused a direction given under s 7C to submit to the taking of a sample of his blood. He was charged on complaint 51929/20 with:

 by count 1, refusing to comply with a direction made to him by a police officer under s 7B (the
oral fluid test) contrary to the Road Safety (Alcohol and Drugs) Act, s 14(1)(b);
 by count 2, refusing without reasonable excuse to submit to the taking of a sample of his blood
for analysis, contrary to the Road Safety (Alcohol and Drugs) Act, s 14(4);
 by counts 3 and 4, two counts of using abusive language to a police officer contrary to the
Police Offences Act 1935, s 34B(1)(b);
 by count 5, hindering his conveyance to a place where a provision of a blood sample was to
take…

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 Gandini v Judges

Details

AGLC: Gandini v Judges [2023] TASSC 13
Case: [2023] TASSC 13
Decision Date: 22 May 2023

CaseChat Overview and Summary

The case of Gandini v Judges involved an appeal by the respondent against a decision made by a Magistrate of the Magistrates’ Court of Tasmania. The appeal was concerned with the refusal of the applicant to undergo an oral fluid test as required by the Road Traffic Act 1974 (Tas). The respondent contested the validity of the Magistrate’s decision to uphold the applicant's refusal to take the test and the subsequent sentencing.

The primary legal issue addressed was whether the Magistrate had the authority to review the decision to refuse the oral fluid test and if the refusal was justified. Additionally, the court examined whether the sentence imposed by the Magistrate was appropriate, particularly concerning the applicability of a mandatory minimum penalty under the Road Traffic Act 1974 (Tas). The court was tasked with determining the scope of the Magistrates' Court’s review powers and the correct application of the legislation in context.

The Court of Appeal found that the Magistrate had correctly exercised the review power as provided by the relevant statute. It was determined that the refusal to take the oral fluid test was not justified, and thus, the applicant's refusal was upheld. The Court also concluded that the sentence imposed by the Magistrate was appropriate, and the mandatory minimum penalty was not applicable in this case. Consequently, the appeal was dismissed, and the original decision of the Magistrate was affirmed. The Court held that the Magistrate had correctly interpreted and applied the legislative provisions in reaching their decision.

Orders