Huey v O'Callaghan

[2017] QMC 7

MAGISTRATES COURT OF QUEENSLAND

CITATION:

Huey v O’Callaghan [2017] QMC 7

PARTIES:

WILLIAM HUEY

v

JARED JAMES O’CALLAGHAN

FILE NO/S:

MAG-00011527/17(5)

DIVISION:

Magistrates Court

PROCEEDING:

Criminal Trial

ORIGINATING COURT:

Mackay

DELIVERED ON:

5 June 2017

DELIVERED AT:

Mackay

HEARING DATE:

19 April 2017

MAGISTRATE:

Acting Magistrate J M Aberdeen

ORDER:

Not Guilty, charge dismissed

CATCHWORDS:

CRIMINAL LAW – Omission liability – failing to vote in 2016 Local Government election – “unwilled omission” – defence of “valid and sufficient excuse”

LEGISLATION: 

COUNSEL:

The following legislation was cited:

Criminal Code, ss. 23, 36

Local Government Electoral Act 2011, ss. 66, 168

The following cases are cited:

Beckwith v R (1976) 135 CLR 569

Belling v O’Sullivan [1950] SASR 43

Burns v R (2012) 246 CLR 334

Callanan v Witness M [2017] QSC 2

Dowling v Bowie (1952) 86 CLR 136

DPP v Poniatowska (2011) 244 CLR 408

Gannat v Becker (unreported, Sup Crt Sth Aust, Judgment No S3532, 30/07/1992)

Harding v Price [1948] 1 KB 695

Judd v McKeown (1926) 38 CLR 380

Mr C Cater, for the complainant

SOLICITORS:

Defendant in person

G R Cooper, Crown Solicitor

1. Mr Jared O’Callaghan appears before the Court charged with one offence under s. 168(1)(a) of the Local Government Electoral Act 2011 (LGEA). The section provides inter alia:-

“(1) An elector for an election must not –

(a)    fail to vote at the election without a valid and sufficient excuse;

…

Maximum penalty – 1 penalty unit.”

1. This is a criminal proceeding. The onus of proving the offence rests, at all times, upon the prosecution[1]. This involves proof, beyond reasonable doubt, of each and every element of the offence.  These principles are fundamental to any criminal prosecution, irrespective of whether the defendant faces a maximum penalty of substantial imprisonment or, as in the present case, 1 penalty unit.

   [1] Subject to one matter, which is dealt with below.

1. The basic proposition encompassed by the prosecution case is that Mr O’Callaghan failed to vote in the local government elections held in Queensland on the 19^th March 2016[2].

[2] This electoral event also encompassed the 2016 Queensland State Referendum: see Template letter to electors from the ECQ: Exhibit 2.

Agreed Facts:

1. There has been tendered, and received, an agreed Statement of Facts, by which certain facts, central to the proof of the prosecution case, have been admitted by the defendant. Those agreed facts consist of the following[3]:-

1.   Mr Jared James O’Callaghan (“Mr O’Callaghan”) was enrolled on the Electoral Roll for the local government area of Mackay Regional Council, as at the
cut-off date of 12^th February 2016 for the Electoral Roll for the quadrennial election held in 2016 (“the election”);

2.   The election was held on 19^th March 2016;

3.   Mr O’Callaghan did not vote at the election;

4.   On 25^th July 2016, the Electoral Commission of Queensland (ECQ) issued an Apparent Failure to Vote (AFTV) notice to Mr O’Callaghan in relation to his alleged failure to vote at…