Johnston v Tasmania Police - [2020] TASSC 4

[2020] TASSC 4

COURT: SUPREME COURT OF TASMANIA

CITATION: Johnston v Tasmania Police [2020] TASSC 4

PARTIES:  JOHNSTON, Richard William
  v
  TASMANIA POLICE

FILE NO:  2391/2019
DELIVERED ON:  27 February 2020
DELIVERED AT:  Hobart
HEARING DATE:  20, 27 February 2020
JUDGMENT OF:  Brett J

CATCHWORDS:

Magistrates – Appeal and review – Tasmania – Motion to review – Other matters – Need for sentencing court to ensure plea of guilty is unequivocal – Unrepresented defendant.
Aust Dig Magistrates [1349]
Traffic Law – Offences – Particular offences – Alcohol and drug related offences – Tasmania – Driving with alcohol in body while unlicensed – Exception where ineligible to hold or renew licence because of Monetary Penalty Enforcement suspension.
Aust Dig Traffic Law [1155]

Vehicle and Traffic Act 1999 (Tas), ss 8(1), 9.
Road Safety (Alcohol and Drugs) Act1970 (Tas), s 6(2), (3B).
Monetary Penalties Enforcement Act 2005 (Tas), ss 55, 56.
Vehicle and Traffic (Driver Licence and Vehicle Registration) Regulations 2010 (Tas), regs 27, 33(5).
Marshall v Tasmania [2018] TASSC 11, distinguished.
Maxwell v The Queen (1996) 184 CLR 501; Beechey v McDonald [2010] TASSC 47, applied.

REPRESENTATION:

Counsel:
             Applicant:  In Person
             Respondent:  S Nicholson
Solicitors:
             Respondent:  Director of Public Prosecutions

Judgment Number: [2020] TASSC 4
Number of paragraphs: 21

Serial No 4/2020
File No 2391/2019

RICHARD WILLIAM JOHNSTON v TASMANIA POLICE

REASONS FOR JUDGMENT BRETT J

27 February 2020

On 23 July 2019, the applicant pleaded guilty before Magistrate Brown to a number of traffic offences. The offences in question are as follows:

Complaint No	Date	Offence
33165/18	27 June 2018	Unlicensed driving (s 8(1) of the Vehicle and Traffic Act 1999)
34860/18	1 September 2018	Unlicensed driving
35191/18	6 October 2018	Unlicensed driving Driving unregistered vehicle Driving uninsured vehicle
30400/19	2 January 2019	Driving with alcohol in blood while not being the holder of a driver licence (s 6(2) of the Road Safety (Alcohol and Drugs) Act 1970) Unlicensed driving
30837/19	18 January 2019	Unlicensed driving

The applicant was unrepresented when he appeared before the magistrate. The magistrate initially directed that a plea of not guilty be entered to the s 6(2) charge after the applicant claimed that he had not been subjected to a breath analysis at the police station. At the request of the prosecution, and with the consent of the applicant, the magistrate stood the matter down to enable a discussion between the prosecutor and the applicant to take place outside the court. When the case resumed, the prosecutor indicated that there had been a discussion, and said:
"... it's just the fact that he was unlicensed is the reason why he's subject to that charge. So, he's content to change the plea on that matter on count 1."
The magistrate then explained to the applicant the nature of the offence. The alleged reading was .025, which the magistrate noted was under the legal limit. He made the point to the applicant that it was…

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: [2020] TASSC 4
Decision Date: 27 February 2020

CaseChat Overview and Summary

Johnston was charged with an offence of assault and applied to the Magistrates Court of Tasmania to review his conviction and sentence. The applicant was unrepresented and pleaded guilty to the charge. The sentence imposed was a conviction recorded without any penalty. The applicant later sought a review of his conviction and sentence on the basis that he had not unequivocally pleaded guilty. The court had to determine whether the sentence was flawed because the applicant had not unequivocally pleaded guilty. The court noted that in sentencing the applicant, the magistrate had not followed the correct procedure by ensuring that the applicant’s plea of guilty was unequivocal. The court held that the sentence was therefore flawed, and quashed the conviction and sentence. The matter was remitted to the Magistrates Court to be re-sentenced. The applicant was ordered to pay the respondent’s costs of the review.

Orders