Gooley v Senior Constable Chad Stewart - [2018] NSWSC 1738

Supreme Court

New South Wales

Medium Neutral Citation: Gooley v Senior Constable Chad Stewart [2018] NSWSC 1738
Hearing dates: 25 July 2018
Decision date: 16 November 2018
Jurisdiction: Common Law
Before: Button J
Decision:
(1) Leave to appeal granted.
(2) Appeal dismissed.
(3) The plaintiff in this Court, Mr Brett Raymond Gooley, must pay the costs of the defendant in this Court, Senior Constable Chad Stewart.

Catchwords: CRIMINAL LAW – appeal from Local Court – offence of exceeding speed limit by more than 10 kilometres per hour – defendant requested further information about speed measuring device for expert report – magistrate held no power under s 28 of the Local Court Act 2007 (NSW) to order further information – even if power existed, magistrate refused to exercise discretion in circumstances –available alternatives to gather information – whether s 28 means that magistrate can utilise discretion to order more information – whether magistrate’s exercise of discretion unjust or unreasonable – consideration of ss 140 and 141 Road Transport Act 2013 (NSW) – ability of defendant to rebut the presumption of accuracy of speed measuring device – no error in exercise of discretion – appeal dismissed
Legislation Cited: Crimes (Appeal and Review) Act 2001 (NSW)
Criminal Appeal Act 1912 (NSW)
Criminal Procedure Act 1986 (NSW)
Evidence Act 1995 (NSW)
Local Court Act 2007 (NSW)
Road Rules 2014 (NSW)
Road Transport Act 2013 (NSW)
Road Transport (General) Regulation 2013 NSW)
Cases Cited: Dao v R [2011] NSWCCA 63; (2011) 81 NSWLR 568
House v King (1936) 555 CLR 499; [1936] HCA 40
Johnston v Nationwide News Pty Ltd [2005] NSWCA 17; (2005) 62 NSWLR 309
NH v Director of Public Prosecutions (SA) [2016] HCA 33, (2016) 260 CLR 546
Queanbeyan City Council v Environment Protection Authority [2011] NSWCCA 108
R v Bozatsis and Spanakakis (1997) 97 A Crim R 296
R v Matthews [2018] NSWCCA 7
Salisbury v Local Court of New South Wales & Anor [2016] NSWSC 1082
Category: Principal judgment
Parties: Brett Raymond Gooley (Plaintiff)
Senior Constable Chad Stewart (Defendant)
Representation:
Counsel:
E Peden & P McDonald (Plaintiff)
Solicitors:
Maurice Marshan (Plaintiff)
HWL Ebsworth Lawyers (Defendant)

File Number(s): 2018/36094
Publication restriction: Nil

Judgment

Introduction

By way of a summons seeking leave to appeal filed on 2 February 2018, Brett Raymond Gooley (the plaintiff or applicant in this Court, but because of his role in the Local Court, hereinafter “the defendant”) impugns a decision of her Honour Magistrate Follent of 31 January 2018. By that decision, the learned magistrate refused to make orders sought by the defendant pursuant to an application for so-called particulars, and, in the alternative, a stay of criminal proceedings pertaining to an alleged breach of the road rules by way of speeding.

Background

The following is a broad overview of what brought the matter before me. A more detailed analysis of the interactions between the parties after the proceedings were commenced is provided later in this judgment.
The defendant was charged on 21 April…

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.

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Details

Case: [2018] NSWSC 1738
Decision Date: 16 November 2018

CaseChat Overview and Summary

The appeal in Gooley v Senior Constable Chad Stewart was brought before the court by the defendant, Gooley, who was contesting a conviction for exceeding the speed limit by more than 10 kilometres per hour. The case originated in the Local Court, where Gooley sought further information about the speed measuring device used in the case for the purposes of an expert report. The magistrate declined to order the additional information, citing the absence of power under section 28 of the Local Court Act 2007 (NSW) to do so, and even if such power existed, the magistrate refused to exercise their discretion given the available alternatives for obtaining information. Gooley appealed the magistrate's decision, arguing that section 28 allowed for the magistrate's discretion to order more information and that the exercise of discretion was unjust or unreasonable.

The court considered whether section 28 of the Local Court Act 2007 (NSW) indeed provided the magistrate with the discretion to order further information and if so, whether the magistrate's decision not to exercise this discretion was erroneous. The court also examined the provisions of sections 140 and 141 of the Road Transport Act 2013 (NSW) to determine the defendant's ability to rebut the presumption of accuracy of the speed measuring device. After thorough analysis, the court found no error in the magistrate's exercise of discretion, emphasising that the magistrate had considered all relevant factors and had viable alternatives at their disposal to obtain the necessary information. Consequently, the appeal was dismissed, upholding the original conviction.

The reasoning of the court was grounded in the statutory interpretation of section 28 and the magistrates' discretion under the Local Court Act, as well as the provisions relating to the presumption of accuracy of speed measuring devices under the Road Transport Act. The court concluded that the magistrate's decision was neither unjust nor unreasonable, and there was no basis to overturn the conviction on appeal. The decision underscores the importance of judicial discretion in managing the scope of information gathering in traffic offence cases while ensuring that due process is maintained.

Ultimately, the court's decision affirmed the magistrate's ruling, rejecting Gooley's appeal and maintaining the conviction for exceeding the speed limit by more than 10 kilometres per hour. The court's dismissal of the appeal reinforces the authority of magistrates in exercising discretion in accordance with the law and highlights the procedural safeguards in place to ensure fair trials in traffic offence matters.

Orders