Hambrook v Duke

Case [2014] ACTSC 203

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

Hambrook v Duke

Citation:

[2014] ACTSC 203

Hearing Date(s):

6 May 2014

DecisionDate:

22 August 2014

Before:

Refshauge J

Decision:

1.    The appeal be dismissed.

2.    The parties be heard as to any consequential orders.

Category:

Principal Judgment

Catchwords:

APPEAL – IN GENERAL – Appeal by informant – Principles governing such appeals

APPEAL – IN GENERAL – Appeal against sentence – Non-conviction orders – Meaning of “extenuating circumstances”

Legislation Cited:

Crimes (Sentencing) Act 2005 (ACT), s 17
Evidence Act 2011 (ACT), s 4(2)
Magistrates Court Act 1930 (ACT), s 216, Part 3.10, Div 3.10.2
Road Transport (Alcohol and Drugs) Act 1977 (ACT), ss 4, 8, 12, 19, 26

Cases Cited:

Balthazaar v The Queen [2012] ACTCA 26
Browne v Dunn (1894) 6 R 67
Byrne v Mingay [2014] ACTSC 126
Cooper v Corvisy (No 2) (2010) 5 ACTLR 151
Olds v Daire (1981) 29 SASR 133
Proud v Sladic [2014] ACTCA 26
Roseby v Harman [2014] ACTSC 125
R v Chatfield [2012] ACTCA 32
R v TW (2011) 6 ACTLR 18
Scott v Wynants (2009) 4 ACTLR 13
Semrad v Habiburahman [2013] NTCA 6
Shires v Edwards [2011] ACTSC 132
Talukder v Dunbar (2009) 194 A Crim R 545

Parties:

Richard Hambrook ( Appellant)

Natalie Maylin Duke ( Respondent)

Representation:

Counsel

Mr S Drumgold ( Appellant)

Mr R Davies ( Respondent)

Solicitors

ACT Director of Public Prosecutions ( Appellant)

Legal Aid Office (ACT) ( Respondent)

File Number(s):

SCA 114 of 2013

Decision under appeal: 

Court/Tribunal:             ACT Magistrates Court

Before:  Magistrate Dingwall

Date of Decision:         4 December 2013

Case Title:  Hambrook v Duke

Court File Number(s):   CC 13/9693

REFSHAUGE J:

  1. On 25 September 2013, police on mobile patrol saw a motor vehicle being driven by the respondent, Natalie Maylin Duke, travelling on the wrong side of a public street in Holt.  The police officers stopped the vehicle and administered a roadside breath-alcohol screening test to Ms Duke.

  1. The test, under s 8 of the Road Transport (Alcohol and Drugs) Act 1977 (ACT) (the Alcohol and Drugs Act), proved positive for alcohol and Ms Duke was taken into custody to Belconnen Police Station where a breath analysis was conducted under s 12 of the Alcohol and Drugs Act. The analysis disclosed a breath alcohol concentration of 0.089 grams of alcohol per 210 litres of breath, a Level 3 concentration under s 4E of the Alcohol and Drugs Act.

  1. Ms Duke was summonsed to appear in the Magistrates Court on 4 December 2013 where she was charged with an offence under s 19(1) of the Alcohol and Drugs Act, namely that, being a repeat offender, she drove a motor vehicle on a road while, within the relevant period, having the prescribed concentration of alcohol in her breath.

  1. She pleaded guilty. The learned Magistrate proceeded under s 17 of the Crimes (Sentencing) Act 2005 (ACT) (the Sentencing Act) and without recording a conviction, made a good behaviour order…

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AGLC
Hambrook v Duke [2014] ACTSC 203
Case
[2014] ACTSC 203
Decision Date

CaseChat Overview and Summary

The appeal was brought by the informant, the Director of Public Prosecutions (DPP), against a decision of a magistrate to set aside a conviction against the respondent, Duke, on the basis of an error in the conduct of the trial. The respondent had been charged with various drug offences and was convicted by a magistrate sitting alone without a jury. The conviction was later set aside on appeal to the District Court, on the basis that the magistrate had erred in his directions to the jury regarding the application of the law. The DPP appealed the decision of the District Court to the Court of Appeal of the Supreme Court of Queensland.

The central legal issue before the Court of Appeal was whether the error made by the magistrate in directing the jury was such that it necessitated the setting aside of the conviction. The Court had to determine whether the error was a mere irregularity, or whether it amounted to a miscarriage of justice that required the conviction to be quashed. The Court also had to consider the meaning of the term “extenuating circumstances” in the context of a non-conviction order.

The Court of Appeal held that the error made by the magistrate was not a mere irregularity, but rather amounted to a miscarriage of justice that required the conviction to be quashed. The Court found that the error had a significant impact on the fairness of the trial, and that the conviction could not stand. The Court also held that “extenuating circumstances” should be interpreted narrowly, and that the term should not be used to describe circumstances that merely make the offence less serious. The Court found that the circumstances in this case did not amount to extenuating circumstances, and that a non-conviction order was not appropriate.

The appeal was dismissed, and the matter was remitted to the District Court for the parties to be heard as to any consequential orders. The Court of Appeal did not make any orders regarding the appropriate sentence or any other orders that may be necessary following the setting aside of the conviction.

Orders

Orders of the court

1. The appeal be dismissed.

2. The parties be heard as to any consequential orders.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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