Hajdu v Brown

[2007] HCATrans 245

[2007] HCATrans 245

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Hobart  No H6 of 2006

B e t w e e n -

LOUIE HAJDU

Applicant

and

GRAEME MAXWELL BROWN

Respondent

Application for special leave to appeal

Publication of reasons and pronouncement of orders

HAYNE J
CRENNAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 24 MAY 2007 AT 9.31 AM

Copyright in the High Court of Australia

HAYNE J:   The applicant was found guilty by a Magistrate of four charges arising out of what was alleged to be the applicant's illegal fishing (with others) for abalone in Tasmanian waters.  By notice of review under Pt XI of the Justices Act 1959 (Tas), the applicant moved the Supreme Court of Tasmania to review his convictions. Section 107(4) of that Act required the applicant to state the grounds on which review was sought, alleging either an error or mistake of fact or law, or both, or want of jurisdiction. One of the grounds stated by the applicant in his notice to review was that the Magistrate's findings were unsafe, unsatisfactory or unreasonable.

At first instance in the Supreme Court of Tasmania, Blow J dismissed the motion to review.  The applicant appealed to the Full Court of the Supreme Court of Tasmania alleging, among other things, that the primary judge had employed the wrong test in deciding whether the convictions were unsafe, unsatisfactory or unreasonable.  That appeal was dismissed.

He now seeks special leave to appeal to this Court.  He contends that an appeal would require consideration of what he described as "the correct approach and application of the common law test formulated in [M v The Queen (1994) 181 CLR 487] applied to a summary finding of guilt".

The relevant question presented by the applicant's notice to review under the Justices Act was whether there was an error or mistake of fact.  This Court's decision in M v The Queen was directed to the different question of whether, in the terms found in the common form criminal appeal legislation, there has been, on any ground, a miscarriage of justice.  Although what is said in M v The Queen may provide some assistance in deciding whether a court of summary jurisdiction has made an error or mistake of fact, the ultimate question is presented by the relevant statutory provision, not a "common law test".

There are insufficient prospects of the applicant succeeding in an appeal against the Full Court's orders to warrant a grant of special leave in this matter.

Pursuant to r 41.11.1 we direct the Registrar to draw up, sign and seal an order dismissing the application.  I publish that disposition.

AT 9.34 AM THE MATTER WAS CONCLUDED