Gandini v Tasmania Police

[2021] TASSC 17

[2021] TASSC 17

COURT:	SUPREME COURT OF TASMANIA
CITATION:	Gandini v Tasmania Police [2021] TASSC 17
PARTIES:	Daniel Victor, of the family GANDINI
v
TASMANIA POLICE
FAIRLEY, D R
FILE NO:	1789/2020
DELIVERED ON:	19 April 2021
DELIVERED AT:	Hobart
HEARING DATE:	12 April 2021
JUDGMENT OF:	Pearce J
CATCHWORDS:

Criminal Law – Procedure – Warrants, arrest, search, seizure and incidental powers – Warrants – Warrants for arrest and detention – Issue and validity – Person subject to police bail – Deliberate failure by person in

court to answer to name on bail and court documents.

Justices Act 1959 (Tas), s 34.
Bail Act 1994 (Tas), s 5.

Aust Dig Criminal Law [2962]

REPRESENTATION:

Counsel:

Applicant:	In person
Respondent:	S Nicholson

Solicitors:

Respondent:  Director of Public Prosecutions

Judgment Number:	[2021] TASSC 17
Number of paragraphs:	14

Serial No 17/2021 File No 1789/2020

DANIEL VICTOR, OF THE FAMILY GANDINI

v TASMANIA POLICE and MAGISTRATE D R FAIRLEY

REASONS FOR JUDGMENT PEARCE J
19 April 2020

1             This motion to review challenges the decision of a magistrate, Mr D Fairley, to issue a warrant for the arrest of a person named Daniel Victor Gandini for failing to answer police bail. Execution of the warrant resulted in the arrest of the applicant, who identifies himself in these proceedings in various ways, but principally as Daniel Victor of the Family Gandini. The applicant claims that the warrant should not have been issued because he did, in fact, answer his bail.

2   For the following reasons the motion fails.

3             On 14 July 2020 the magistrate was sitting in the Court of Petty Sessions in Devonport. Proceedings against a person named Daniel Victor Gandini were called on. The material before the magistrate revealed the following. On 8 March 2020 a person identified by that name was arrested by a police officer and charged with refusing an oral fluid test contrary to the Road Safety (Alcohol and Drugs) Act 1970, s 14(1)(b), refusing without reasonable excuse to submit to the taking of a sample of his blood contrary to the Road Safety (Alcohol and Drugs) Act, s 14(4), hinder conveyance contrary to the Road Safety (Alcohol and Drugs) Act, s 14(1B)(b), and two counts of using abusive language to a police officer contrary to the Police Offences Act 1935, s 34B(1)(b). The person arrested was admitted to bail by a police officer pursuant to the Justices Act 1959, s 34. In accordance with the Bail Act 1994, s 5(1)(a), a police officer handed that person a notice addressed to Daniel Victor Gandini, stating the address and date of birth of that person, and specifying that he was released from custody "on condition that he appear at the Devonport Court of Petty Sessions, located at 8 Griffiths Street, Devonport at 9.30 am on Tuesday the fourteenth day of July 2020." The notice is endorsed as required by s 5(1)(b), but is marked that the person to whom the notice was given refused to sign it in the manner contemplated by s 5(1)(c). No issue arises in this motion that the notice was not valid or that the police officer who issued it did not have power to admit the person to bail.

4             The proceedings before the magistrate were commenced by complaint made pursuant to the Justices Act, s 27, against Daniel Victor Gandini. When, on 14 July 2020, the name of the defendant named in the complaint was called, the applicant presented himself to the magistrate. However, when asked whether he was the person named in the proceedings, he said only that he was "the principal in this matter" and that he would "be remaining the executive beneficiary in this matter today". The magistrate addressed the applicant and said:

"… I can only deal with the person described on the complaint as Daniel Victor Gandini

and if that person doesn't answer to that name I'll have to mark it as a non-appearance, which means I'll eventually ask whether or not that person was bailed to appear and if not I'll have to issue a warrant."

5             The applicant again said "I am the principal in this matter and I'll be remaining as the executive beneficiary in this matter today". He told the magistrate that he was there "as the highest member of the

Court.” The magistrate asked to view the bail document. Having found himself unable to be satisfied

that the person named in the proceedings had appeared before him, his Honour issued a warrant for the
arrest of Daniel Victor Gandini. Even then, the applicant continued:

"I am the principal and beneficiary of that name ... I am the agent for that person."

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6             By the Bail Act, s 5(5), where a person admitted to bail fails to appear before justices on the day and at the time specified in a notice referred to in s 5(1)(a), the justices may issue a warrant for his or her arrest. A magistrate has power, by operation of the Justices Act, s 22, to issue the warrant in those circumstances. In this case the magistrate took the view that, in the absence of an acceptance by the person before the court that that person was the defendant in the proceedings, he could not be satisfied that the person named in the bail notice had appeared in answer to the bail, and that the appropriate course was to issue a warrant for the arrest of that person. This motion to review was filed on the following day.

7             The proceedings resumed before the magistrate on 20 July 2020. It is apparent that the applicant had been arrested in the meantime. He remained unwilling to answer to the name Daniel Victor Gandini. The magistrate ultimately was satisfied that "the person who was arrested and brought before the Court today is Daniel Victor Gandini, the person named on the current complaints before the Court", but only after hearing evidence led by the prosecution to that effect. The proceedings were then further adjourned without plea until 29 July 2020, and the applicant was admitted to bail. On 29 July 2020 the proceedings were further adjourned to await the outcome of this motion, although it is not apparent to me why that was thought necessary.

8             To succeed on a motion brought under the Justices Act, s 107, to review an order made by a magistrate, the applicant must establish an error or mistake on a matter or question of fact alone, or of law alone, or of both fact and law, or that the magistrate had no jurisdiction to make the relevant order. It is at once to be pointed out that this Court is not dealing with offences which are the subject matter of the complaint. For that reason Tasmania Police, named as second respondent, should not be a party to the motion. The magistrate did not make any procedural or evidentiary ruling concerning those charges. The issue of whether the order made by the magistrate is amenable to review, such as was considered by the Full Court in TT Line Company Pty Ltd v Burrows [2021] TASFC 3, does not arise. Similarly, in the course of his submissions, the applicant informed me that he had been charged with "failing to appear". He seeks an order that that charge be dismissed. I am not dealing with any such charge and no such order can be made. Nothing said in these reasons is intended to address whether that offence can be proved.

9             On 27 July 2020 the applicant also filed an interlocutory application. It adds nothing material to the terms of the motion. It refers to other matters, and asks for answers to a number of questions, which are not proper subjects for review.

10          There are eight grounds of the motion. Rather than attempting to describe or summarise them, it is more convenient to set them out in full as they appear on the notice to review:

"1. I Daniel Victor of the family Gandini, on the fourteenth of July two thousand and twenty at 9.45 am, I attended the Devonport Magistrates Court with my wife Catherine Frances of the family Gandini.

2. A bail notice dated the eighth day of March two thousand and twenty, states that 'You are to appear at the Devonport of Petty Sessions' on Tuesday the Fourteenth day of July two thousand and twenty.

3. I, Daniel Victor of the family Gandini, am not 'you', nor am I the non-living Cestui
Que Vie Trust DANIEL VICTOR GANDINI.
4. DANIEL VICTOR GANDINI was called before the court and before Magistrate
Duncan Fairley just before 11 am on the fourteenth of July two thousand and twenty.

5. As the principal and executive beneficiary of the non-living Cestui Que Vie Trust DANIEL VICTOR GANDINI or DANIEL V GANDINI, or Daniel Victor GANDINI or any such CAPITAL-LETTERED or lower case variation of such, I entered the court and appeared before Magistrate Fairley.

6. There is a court recording and security camera footage to confirm that I appeared in
Devonport Magistrates Court on the fourteenth of July two thousand and twenty.

3   No 17/2021

7. Attached is a signed affidavit from Daniel Victor of the family Gandini and a signed Statutory Declaration from my wife Catherine Frances of the family Gandini wo was witness to my appearance before Magistrate Fairly on the fourteenth of July two thousand and twenty.

8. The identities of 'Daniel Victor', of the family Gandini, and DANIEL VICTOR GANDINI or DANIEL V GANDINI, or Daniel Victor GANDINI or any such CAPITAL-LETTERED or lower case variation of such, have not been determined and/or defined, and must be determined before this matter proceed so as to prevent an injustice to either or both parties."

11           It is not asserted by the applicant that the magistrate did not have jurisdiction to order the issue of a warrant for his arrest. Doing the best I can, I understand the grounds to assert a single error; namely that the magistrate erred in being satisfied that the applicant had failed to appear, because he was in fact present. With respect to him, the contention misses the point.

12           In very general terms, the applicant is entitled to refer to himself in any manner, and using whatever name, he chooses. Judicial officers will, in my experience, attempt to accommodate such a wish. However, viewed from the magistrate's point of view, his Honour could not know, in the absence of acceptance by the applicant that he was the person charged and admitted to bail by the police, that the person admitted to bail had appeared as required to answer the bail. The magistrate could not have been confident that the person before him was the person who was the subject of the proceedings. Unless the magistrate was sufficiently satisfied of those matters, the proceedings could not continue. The making of further bail orders would have been problematic. The magistrate did not know the person who appeared before him. There was no evidence at that stage that the person in court was the person admitted to bail. There was no evidence or acknowledgement that the person in court was Daniel Victor Gandini. The applicant deliberately failed to accept he was the person identified by that name despite repeated opportunities to do so, and a clear understanding of the possible consequences if he did not. At no stage did the applicant even say that he was "Daniel Victor of the family Gandini", as he has identified himself in this motion.

13           An order which may deprive a person of his or her liberty is a serious matter. Judicial officers should only make orders to that effect after very careful and cautious consideration. However, the applicant's apparently genuinely held, but misconceived and intransigent views, left the magistrate with little, if any, alternative. His Honour might have asked, for example, whether the person in court agreed that he was the same person as had been handed the bail notice by the police officer on 8 March 2020. That, in the circumstances, might have been enough. However, it is not necessary for me to decide, because what the answer to that question might have been, if it had been asked, cannot be known and can only be a matter of speculation. The charges the magistrate was dealing with are potentially serious. All are punishable by imprisonment. The magistrate was entitled to take the course he did and no error is demonstrated.

14   The motion is dismissed.