Lane v White
[2014] TASSC 46
•21 August 2014
[2014] TASSC 46
COURT: SUPREME COURT OF TASMANIA
CITATION: Lane v White [2014] TASSC 46
PARTIES: LANE, Sergeant Richard
v
WHITE, William Thomas Charles
FILE NO/S: 1073/2012
DELIVERED ON: 21 August 2014
DELIVERED AT: Hobart
HEARING DATES: 21 May 2013 and 9 May 2014
JUDGMENT OF: Wood J
CATCHWORDS:
Criminal Law – Evidence – Matters relating to proof – Prima facie case or case to answer – Generally – Trespass - Whether Magistrate erred in upholding submission of no case to answer.
Police Offences Act 1935 (Tas), s14B.
O v Wedd [2000] TASSC 74, applied.
Zanetti v Hill (1962) 108 CLR 433; May v O’Sullivan (1955) 92 CLR 654, referred to.
Aust Dig Criminal Law [2702]
Magistrates – Appeal and review - Tasmania – Motion to review – Powers of court – Dismissal – No substantial miscarriage of justice.
Justices Act 1959 (Tas), s110(2)(ab).
Weiss v R (2005) 224 CLR 300, applied.
Aust Dig Magistrates [1347]
REPRESENTATION:
Counsel:
Applicant: S Nicholson
Respondent: C Gunson and K Mooney
Solicitors:
Applicant: Director of Public Prosecutions
Respondent: CFMEU Construction & General Division
Judgment Number: [2014] TASSC 46
Number of paragraphs: 48
Serial No 46/2014
File No 1073/2012
SERGEANT RICHARD LANE v WILLIAM THOMAS CHARLES WHITE
REASONS FOR JUDGMENT WOOD J
21 August 2014
The respondent, William Thomas Charles White, was charged with trespass contrary to s14B of the Police Offences Act 1935. The particulars of the charge are that on 20 July 2012, without reasonable or lawful excuse, he remained on the premises situated at the "Work Site" at the Royal Hobart Hospital, without the consent of the owner, occupier or the person in charge of the said premises. He pleaded not guilty, and at the end of the prosecution case the learned magistrate, Ms C Rheinberger, upheld a submission that he had no case to answer. The applicant has moved the Court to review the dismissal of the charge on the single ground that the learned magistrate erred in fact and/or in law in upholding the submission.
The incident
The charge concerns an incident that occurred on 20 July 2012 when the respondent, a representative of the CFMEU Tasmania, went to a work site to speak with employees of construction companies, Fairbrother Pty Ltd and Hazell Bros Group. The worksite was a construction project at the Royal Hobart Hospital wing on the corner of Liverpool and Campbell Streets.
There the respondent entered a temporary structure involving a gantry and platforms which was external to the hospital building. The structure housed site offices, and also amenities for the construction workers, such as toilets and crib rooms. This structure also gave access to the building where, inside, the construction works were being undertaken. The respondent spoke to workers on a landing area near the amenities. Site managers for Fairbrother and Hazell Bros requested that he leave and he refused to do so.He did not enter the building where the construction work was occurring or approach the entrance.
The issue before the magistrate
The charge against the respondent is that he remained on premises without consent. The charge concerns his conduct in remaining after the requests from the company management that he leave. The issue that arose before the learned magistrate was whether either or both of the company managers could be regarded as an occupier or in charge of the premises, specifically the landing area from which the respondent was requested to leave and where he remained until his arrest.
The evidence
The site managers who asked the defendant to leave gave evidence at the hearing: Mr Neil Staite, Construction Site Manager for Hazell Bros and Peter Adams, Construction Manager of Fairbrother. Other witnesses were Mr Peter Killick, General Manager and a Director of Fairbrother, and Senior Constable Remess. A summary of the material evidence is as follows.
At approximately 9.45am, the respondent attended the work site. As he made his way up the stairs to the gantry, Mr Staite asked the respondent if he had given him 24 hours' notice to visit the site, as is usual. The reference to 24 hours' notice was to a statutory requirement under the Fair Work Act 2009, that union officials provide notice to employers of their attendance (see in particular, s484 and generally, Pt3.4, setting out a regime involving entry permits and an obligation to give entry notice of at least 24 hours). The respondent replied that he had no intention of giving 24 hours' notice. The respondent went to Mr Adams' office, and had a conversation with him. During that conversation, the respondent told Mr Adams that he had come to see the employees. Mr Adams asked the respondent if he had his 24 hour notice permit, and he replied he had not. Mr Adams told the respondent that he could not come on site. The respondent said he did not care, and that he was going to talk to the employees. The respondent walked along the gantry to the landing area and spoke to a few of the men in an area outside the crib room. There he spoke to two subcontractors, plumbers, and another person who may have been one of Fairbrother's employees. Mr Adams asked him whether he was there to see just Fairbrother employees, or Hazell's, and the respondent said he was there to see all employees. Mr Staite joined them.
At some point, Mr Adams left and went to the police station in Liverpool Street, returning with a police officer, Senior Constable Remess. Both Mr Staite and Mr Adams requested that the respondent leave the area and in response the respondent refused. Senior Constable Remess formally requested that the respondent leave and he again refused. Senior Constable Remess read to him a document which outlined the right to entry provisions within the Fair Work Act, being the Master Builder's Tasmania Guide to dealing with unlawful site entry. During his evidence he agreed that the direction he gave to the respondent to leave was the procedure required by the Police Offences Act 1935, s55, to enable an arrest without warrant. The respondent was arrested for trespass.
Mr Staite gave evidence that the reason he asked the respondent to leave was because he had not given 24 hours' notice of his intended visit to the site. The evidence of Mr Adams was to the same effect.
There was some background evidence given by Mr Killick regarding Fairbrother's stance with respect to enforcing the 24 hour notice requirement. In brief, after heated discussions with union representatives, a meeting was held by Fairbrother on 26 June 2012, attended by the respondent, when it was agreed that the 24 hour notice requirement would be waived. A less onerous notice requirement was put in place involving a telephone call on the day, signing the visitor's book and being escorted around the site with a representative of Fairbrother. This proved to be problematic, and on 19 July 2012 the company decided that they would require unions to recommence giving 24 hours' notice. Whether or not that decision was communicated to the respondent was not revealed in the evidence. Regardless, the evidence reveals that, from the respondent's point of view, the 24 hour notice requirement was a point of contention.
Evidence that assumed significance for the purpose of the no case ruling concerned the landing area where the respondent was spoken to by Mr Staite and Mr Adams, and from which he refused to leave, and the authority that Fairbrother and Hazell Bros had in relation to the work site and, particularly, that area.
The external structure in question was in front of the hospital building on Liverpool Street, commencing close to the front entrance and extending along part of the front of the building towards the corner with Campbell Street. Access was gained to the gantry by a set of stairs near the hospital entrance. A driveway to that area had a gate which was locked after hours. The structure occupied space at the front of the hospital building up to the footpath on Liverpool Street. There was another set of stairs leading directly from the footpath on Liverpool Street, with a gate at that access.
Approaching the structure, as the respondent did, from the stairs close to the hospital entrance, there were (demountable) site offices on either side of the gantry. Hazell Bros and Fairbrother each had their own site office. There was a meeting room, two crib rooms and then the gantry opened out into the landing area in question, where the respondent was arrested. On the landing area was one of the crib rooms and toilets. The access I have mentioned from Liverpool Street was from the footpath to this landing area.
The external structure was shared by the contractors and subcontractors working on the site. The landing area in question was described by witnesses as a communal area. The respondent and the group of workers were congregated outside the crib room and the toilet block. These amenities were for general use. This was also a smoking area.
At one end of this landing area was another set of stairs to a more elevated and larger landing area. This extended to the building wall and gave access inside the building, where the construction work was occurring. There was no suggestion that the respondent was obtaining access to that upper landing area or access inside the building.
There was reference in the evidence to signs such as "Danger Construction Site", and a sign with Fairbrother's policies on it. The witnesses used the location of the signs as they were at the time of the hearing as a reference. In many instances, the location of those signs is not now apparent on review. As an illustration of the difficulty, Mr Adams gave evidence of the area where the respondent was at the time Mr Adams approached him and just before he was removed from the site. He said, "it was just outside the toilet block of the facility and just in front of the sign that you see there today with the Fairbrother's policies on it".
It was also difficult at times to discern the areas witnesses were referring to in their evidence. For example, Senior Constable Remess stated, "When I saw Mr White he was at the end of the gantry here", without describing what he meant by "here". Again, the problem was that the witnesses were referring to the scene as it was at the time of the hearing, which was apparent to the learned magistrate (the external structure, including the landing area, was directly opposite the Magistrates Court), but was not disclosed in the transcript or evident on review. The difficulty would not have been so marked if there had been photographs of the scene tendered at the hearing.
A view was held during the hearing. The points of view followed the respondent's access to the landing area and included the site offices for Hazell Bros and Fairbrother; the meeting room and crib rooms; the landing area near the toilet block; and signs at the top of the stairs ("Danger Construction Site"), on the landing and on the fence facing Liverpool Street. The view was correctly regarded by the learned magistrate as part of the evidence: Evidence Act 2001, s54. In her reasons for upholding the no case to answer submission, the learned magistrate referred to the view but in brief terms, noting offices for Hazell Bros and Fairbrother and a crib room for each, as well and a meeting room and "at the end of those offices or rooms there's this landing area which is regarded as communal". What she gleaned from the view in other respects was not disclosed. Because of the significance of the location where the respondent remained and was arrested, and the lack of detail about this location and the lack of clarity in some of the evidence, I raised with counsel at the hearing of the review my concern in this regard. I suggested that counsel provide a summary of what could be seen on the view with respect to the area where the defendant was arrested. Counsel reached agreement that photographs of the site be provided to me. It was agreed that while they were taken after the hearing, and not available to the magistrate, they may be used by me to provide context to the evidence of the witnesses. It was agreed that the photographs should not be relied upon for the location of the signs at the material time. I was also provided with an extract from the learned magistrate's notes, showing her Honour's notes of a diagram that had been drawn by Mr Adams during his evidence. I have had regard to the photographs for the purpose that was agreed. They have been of assistance in obtaining a general understanding of the landing area and the nature and lay-out of the structure.
As noted, the companies' control and occupation of the construction site and the landing area assumed significance. Evidence bearing on this matter is as follows.
Peter Killick, General Manager and a Director of Fairbrother, gave evidence that he was responsible for the day-to-day operations of Fairbrother's construction projects throughout Tasmania. At around 20 July 2012, the construction companies working on site at the Royal Hobart Hospital were Fairbrother and Hazell Bros. Hansen Yuncken Pty Ltd were also on site, but perhaps not at the same time as Fairbrother. Anyone visiting the construction site on Liverpool Street would need to call into the site office first and sign in as a visitor, employee or contractor. Fairbrother and Hazell Bros each had their own site office. Visitors needed to comply with the individual requirements of the particular company. If a union representative intended to deal with issues relating to both Hazell Bros and Fairbrother, they would need to attend both site offices and sign in at each one.
Mr Killick's evidence was that "anywhere from our offices onwards" was deemed by Fairbrother to be part of their construction zone, whether it be the toilet, the crib room, or Fairbrother's site offices.
Peter Adams as Construction Manager was in control of the Royal Hobart Hospital site for Fairbrother and all its employees. He was responsible for the day-to-day operations of the project. He described his role as including general supervision of all the employees, working with the architect and engineer on the site to make sure the buildings were built as per the plans and documentation, and controlling subcontractors. According to Mr Killick, "he [Mr Adams] would control and limit access, he would coordinate subcontractors as well as our own employees". Mr Peter Killick clarified his evidence, stating that Mr Adams had authority to restrict visitors to Fairbrother's specific project, but not visitors for Hazell Bros.
Neil Staite, Construction Site Manager for Hazell Bros, described his duties as including "site manager" and "restricting entry". Mr Staite explained that anyone on the construction site had access to the landing area in question, but definitely not members of the public. There were signs at the stairs and along the gantry which stated, "All visitors must report to the site office, Danger Keep Out Construction Site". His evidence was that, after the site offices it was a construction site, and the amenities area was in the construction site. He agreed that this was before you got to the area where the construction is occurring. He also explained that the company's workforce did not carry out duties in that particular part of the site and the men would only be there for "their crib purposes". It was suggested to him that Hazell Bros had not required CFMEU representatives to provide 24 hours' notice of their intention to access the areas of the site offices and crib rooms, but he did not agree.
A submission of no case to answer
At the conclusion of the prosecution case, counsel for the respondent, Mr Gunson, made a no case to answer submission. His argument was that there was a lack of evidence that the two companies were the occupiers or persons in charge of the premises where the respondent remained and refused to leave. He submitted that there was no evidence as to the legal basis upon which Fairbrother or Hazell Bros were at that site and might be said to be individually or collectively the occupier or person in charge. He drew attention to the communal nature of the landing area. He submitted that there was no evidence as to the control and management of such communal areas or even that the companies were the occupiers of the communal area in question. While some matters might be inferred, the arrangements for control of the communal areas of that work site would be mere speculation.
It was submitted by the prosecution that the evidence from Mr Staite and Mr Adams, that they were in charge of the site and that they could exclude people, was sufficient evidence, taken at its highest, to defeat a no case to answer submission.
The ruling
The learned magistrate ruled that there was no case to answer and gave oral reasons. Having referred to an outline of the evidence, the particulars of the charge and the evidence of Mr Adams and Mr Staite as to their roles and duties, the learned magistrate referred to the test to be applied by the court in considering the no case to answer submission. Her Honour stated that the "court needs to consider the prosecution case at its highest and then consider whether a tribunal of fact properly directed as to the law could be satisfied beyond a reasonable doubt of the charge".
The learned magistrate noted that it would be reasonable to infer that the State Government owns the Royal Hobart Hospital and that potentially Fairbrother or Hazell Bros could be regarded as an occupier or person in charge. It was that matter that her Honour proceeded to analyse.
Her Honour referred to Mr Gunson's submission as to the communal areas and the question of whether it could be said that Mr Adams or Mr Staite were in charge or occupier of those communal areas. She noted the submission was that there was no evidence as to what other parties had the right to occupy, control or deal with the communal areas of the work site. Her Honour stated:
"Now quite clearly you can infer that there is a contractual relationship between the Royal Hobart Hospital and Fairbrother and Hazell Bros. However you cannot infer what the agreement is for the control of the communal areas or the area in general and on what basis do they occupy the site and who are the people in charge or who is the person in charge.
Now the prosecution as I mentioned earlier rely on the evidence given by Mr Adams and Mr State (sic) and as I said each of them individually gave evidence in response to a question about what their duties were, that they were controlling the site, they were managing the staff and in relation to Mr State (sic) that they were – he was restricting entry onto the site of anyone who was not relevant to the site.
Now in my view there needs to be – well there needs to be some analysis of that evidence and to consider the effect of their evidence. Now their evidence is in response to the question about what their duties were and there's no dispute that that's what their duties were. But in my view there is some distinction to be drawn between what their duties were and what legally had been vested in them or otherwise.
In my view the duties don't automatically – it doesn't automatically flow from what they regard as their duties that they are the person in charge or the occupier. Obviously they are on the site. Obviously they are working on the site. They have – each of the companies have employees on the site that are being managed in relation to the work that's being conducted on the site. But as far as the site is concerned and who the person is in charge or who is the occupier, there isn't any particular evidence.
The evidence as to those aspects, in my view, is silent. The employees of Fairbrother and Hazell Bros are present with their manager but what's the contractual agreement between the Government and Fairbrother and Hazell Bros as to who's in charge of the site and who's actually occupying the site and as to what rights have been or have not been vested to them whilst the construction is being done is not known and to say otherwise in my view would be speculative. So what's the basis upon which they work on that site conducting the construction and there's been no evidence as to the actual authority and in particular the authority over the communal areas in relation to who – what rights have been vested to them as part of the agreement in relation – well the agreement that must have been struck when this construction site was set up.
Now presumably that evidence is available and Mr Killick who was the managing director, sorry, the general manager and one of the directions of Fairbrother gave evidence. There was no evidence led as to that and for all of those reasons I uphold the submission that there is no case to answer."
Discussion: no case to answer
The question of whether there is a case to answer is a question of law as to whether the evidence is capable of establishing beyond reasonable doubt the guilt of the defendant. The question involves considering the evidence at its strongest, from the point of view of the case for the prosecution, and drawing all inferences most favourable to the prosecution which are reasonably open: per Kitto J in Zanetti v Hill (1962) 108 CLR 433 and May v O'Sullivan (1955) 92 CLR 654. The learned magistrate referred to the correct test. It may be noted that her Honour's approach involved the drawing of inferences favourable to the prosecution case.
In assessing whether Mr Staite and Mr Adams were occupying the premises or in charge, I turn to judicial consideration of s14B of the Police Offences Act and these phrases in particular.
In O v Wedd [2000] TASSC 74, Blow J (as he then was) considered the conduct of a security guard in excluding an individual from the Northgate Shopping Centre for a period of 12 months. The individual was security manager of the centre. His Honour noted that "although the lack of consent of the owner or occupier of the land or the person in charge thereof" is an ingredient of s14B(1), the revocation of such consent may be exercised by the agent of the owner of the land, the occupier of the land, or the person in charge of the land. It was a case concerned with revocation of implicit invitation to enter. His Honour explained that it could have been exercised by any agent who was authorised by the occupier to exercise it, subject to any restrictions on the scope of the agent's authority. His Honour's comments emphasised the significance of the scope of the authority that is given. Noting that the security agent was making his living out of acting as security manager at the shopping centre, his Honour inferred that he had been engaged by or on behalf of the occupier of the public or common areas of the centre. It was concluded that the security manager of a shopping centre qualified as a person "in charge" of those areas of the centre. Further, his Honour considered that the security manager might also have constituted the occupier of those areas for the purposes of s14B(1). Blow J held that it could be inferred that the security manager had authority to take reasonable steps for the purpose of maintaining the security of the premises, but not authority to ban individuals from the premises for any length of time.
Blow J at [10] referred to Nathan J's observations in Bethune v Heffernan [1986] VR 417 as to the scope of the word "occupier" in a statutory provision that referred only to owners and occupiers and not to persons in charge. It was considered that the word "occupier" included classes of people who are occupiers by virtue of their office such as railway station masters, or officers in charge of fire and ambulance stations: "public places where some measure of control or regulation is required so that the functions of the place can proceed" (Bethune v Heffernan at 421). The word "occupier" was said to be of uncertain meaning and will depend on the statutory purpose and the context. In that case, the purpose of the legislation was to proscribe all trespasses whenever occurring, and accordingly it was considered that "occupier" should be given its natural and expansive meaning. It can be seen from Nathan J's analysis of the cases that the meaning of the word "occupier" does not necessarily convey occupation that is exclusive or permanent.
Mr Gunson relied on a line of authority commencing with Hill v Tupper (1863) 159 ER 51 for the proposition that a mere licensee will not usually have a right to possession so as to be able to maintain an action in trespass. I note that the traditional view taken in Hill v Tupper has been modified to an extent in recent times: Manchester Airport plc v Dutton [2000] QB 133. In any event, a consideration of whether a person or entity is a licensee brings us to the question as to the reach of the right granted by the contract: see also Vehicle Control Services Limited v The Commissioners for Her Majesty's Revenue & Customs [2013] EWCA Civ 186 at [33] - [34]. We return again to the question articulated by Blow J as to the scope of authority.
Here it may be readily inferred that the two managers had authority to exclude people from the construction site and even that they were also both occupiers of the construction site; can it also be inferred that their authority extended to the premises in question, being the communal landing area?
The evidence, taken at its highest, supports the following inferences:
• Fairbrother and Hazell Bros were the two major construction companies on site at the material time;
• the external structure and gantry were not open to the public generally;
• Mr Adams and Mr Staite were in charge of the construction works on behalf of their respective companies. They had authority on behalf of their companies to restrict access to the construction site. The extent of this authority extended to visitors or subcontractors concerned with the companies' role on site;
• they held the view that they had authority to exclude people from that area;
• the managers assumed and asserted control over the landing area in question; and
• their assertion of control was exercised by the placement of signs, the site offices and the system of signing in.
Undoubtedly it could be inferred, as the learned magistrate noted, that the State Government owns the hospital and there was a contractual relationship between the State and the companies to undertake the construction works. The question is whether it could be inferred that either or both Mr Adams or Mr Staite had authority to exclude individuals from the landing area in question where the respondent remained. It is correct, as the learned magistrate noted, that the basis for any authority was not stated in evidence. The evidence of the contractual agreement as to who was in charge, the ambit of their authority to control the site and, in particular, the communal areas, was not before the court. Yet, as the learned magistrate observed, presumably that evidence was readily available. If it had been led it could have been scrutinised by the court. As submitted by Mr Gunson, the perception that the managers had about their authority to remove people from the premises was not to be equated with their authority as a matter of law.
However, whilst the court's capacity to scrutinise this evidence is most desirable, if the inference could be drawn that either Mr Adams or Mr Staite, or both, had authority, that would be sufficient for the purpose of a no case submission. It would not be necessary for the legal basis for that authority to be identified. The evidence would need to be capable of satisfying a magistrate of the fact of the authority, not the basis for that authority.
It strikes me as reasonably feasible that there could have been an overreach of control exercised by the managers. That the authority of the managers to control access to the construction site was thought to include the surrounds and the landing may have been based on a misplaced assumption or the managers' expectations of the situation. It does not seem improbable that such a matter would be assumed or expected, noting that the landing area in question was not large and was in part a thoroughfare for the construction works. The fact that the site offices operate as gate keeper, not only to the site but also had to be passed before the landing area was reached, could be an accident of design or, rather, it could reflect the authority that the companies had with respect to that area. Either way, it would have encouraged the assumption of authority by the managers and the acceptance of authority by those entering and leaving the area. The fact that there were two construction companies who each had control, but that it seems neither had overall control in relation to access, is complicating. The is the presence of a third construction company, Hansen Yuncken Pty Ltd, has the potential to throw some doubt on the issue.
However, I conclude that in this case, bearing in mind the test of whether there is no case to answer, an inference of authority with respect to the landing area could properly be made. Mr Staite and Mr Adams both gave evidence to the effect that their duties included excluding people, and that their authority to exclude people extended to the landing area. It was open to a magistrate, acting reasonably, to accept their evidence and to regard those assertions of authority over this area as having some, albeit unspecified, legal or contractual foundation. Both witnesses were senior managers and may be thought to have had knowledge of the detail of the companies' contractual arrangements with respect to this site. Taking the necessary approach of considering the evidence at its strongest, from the point of view of the prosecution's case, the evidence would be accepted at face value. For the purpose of the no case to answer submission, the learned magistrate was required to treat their evidence as reliable.
There is other evidence supporting the inference of authority by the two construction companies. There is the evidence of the assertion of authority by the location of the site offices and the system of signing-in. Those site offices were prominent and visible and, it could be inferred, had some permanence. The assertion of control exercised by the companies would have been obvious to the owner or entity being overall in charge, and contracting with companies for the works, and, it may be inferred, was assented to. This would suggest that the assertion of authority was consonant with the contractual arrangements. The signs displayed Fairbrother's control over access to that area by members of the public. Furthermore, the notion that the authority and control of the two companies would extend to the approach to the construction site and the immediate vicinity of the construction works, and not just the construction site itself, is not out of line with common sense and sensible management. A nuisance in the landing area could potentially interfere with construction work that was being undertaken.
As to the scope of the authority and whether it extended to union representatives who had failed to provide 24 hours' notice and obtain a permit, rather than reasons such as safety concerns or interference with the work site, that might also be inferred, given that these are now enshrined in statute, the Fair Work Act.
It could be inferred that the authority of Mr Staite and Mr Adams to manage and exclude visitors was not just in relation to the construction site, but extended to the landing area in particular. The evidence was capable of establishing more than an assertion of authority, but that the men had actual authority and control over the area. The evidence, taken at its highest, is capable of establishing that Mr Staite and Mr Adams were in charge and had actual authority to exclude people from the landing area, both as those in charge of the landing area and as occupiers of those particular premises for the purpose of s14B. I conclude that the learned magistrate erred in concluding that there was no case to answer.
Discussion: proviso
The question arises as to whether the proviso in the Justices Act 1959, s110(2)(ab), may have application and the appeal dismissed, notwithstanding the error made in upholding the no case to answer submission. Section 110(2)(ab) provides that this Court may dismiss the motion "in a case where the court considers that no substantial miscarriage of justice has occurred, even though the cause or matter raised by the motion might be decided in favour of the applicant". It seems that this provision has rarely been considered by this Court where appealable error has been found in a ruling by a magistrate in upholding a no case to answer submission. That is hardly surprising: I expect it would be relatively exceptional for there to be circumstances where, error having been disclosed, there would be justification for its consideration.
The guidance offered in cases which have considered a proviso couched in similar terms, such as Weiss v R (2005) 224 CLR 300 at [41] - [43] and Director of Public Prosecutions v Lynch (2006) 16 Tas R 49 at [46] involving, respectively, an appeal from conviction after a jury trial and against acquittals delivered by a jury, is acknowledged. They may assist in a consideration of whether the proviso in the Justices Act, s110(2)(ab), should be applied: Auspine Limited v Kent [2009] TASSC 38. However, there are no absolute rules or singular tests which govern the wide diversity of circumstances where the proviso may fall for consideration: Weiss at [42] and [45]. In considering the ambit of s110(2)(ab) the root question must be one of statutory construction: Weiss at [9], [44].
In determining the ambit of s110(2)(ab), there are considerations relating to appeals from magistrates which are different to those concerning appeals involving jury trials. The character of the appeal and the retrial are not the same. For example, the learned magistrate has here, as magistrates invariably do, provided reasons for her decision, available to this Court on review. Moreover, upholding an error in dismissing a no case to answer submission does not necessarily result in a retrial before a differently constituted tribunal of fact, unlike an appeal with respect to jury trials. It would be reasonable to suppose that the statutory intention was for such contextual considerations not to be ignored in construing s110(2)(ab), specifically concerned as it is with reviews of magistrates' decisions.
I return to the facts of this case and the question of whether the proviso may have application. There are certain practical realities of remitting the case to the learned magistrate for the completion of the hearing. The magistrate would be required to determine whether she is satisfied beyond reasonable doubt of the elements of the offence, including the issue of authority to exclude. That issue will fall to be determined on the basis of the evidence as it presently stands. This is not a decision that was overturned because of an erroneous view of the law now corrected on review, or because the learned magistrate overlooked certain evidence, now highlighted on review. It failed merely in the assessment of whether the evidence was capable of establishing lack of authority.
On remitting the matter for completion of the hearing, the evidence on this issue is unlikely to gain in strength. It can be assumed that if evidence is given or adduced for the defence there will not be evidence that could strengthen the prosecution's case on this issue; the defence would not be privy to such matters. The learned magistrate's assessment of the evidence, and her concerns regarding the lack of evidence supporting the assertions of authority and identifying the scope of authority, disclosed in her reasons would remain unaddressed. These were views that were the result of careful consideration and were open to her. They are entirely reasonable. The learned magistrate was not required to take the assertions of authority on trust. I cannot see how those valid views will alter after this review. This Court's consideration of the hearing does not undermine the validity of them. The result of my consideration is that, while they are not the only valid views which are open, they may properly govern the learned magistrate's evaluation of the evidence when the question is not that to be answered on a no case to answer submission, but the question of whether she is satisfied beyond reasonable doubt as to guilt.
I do not discern from the terms of the Justices Act, s110(2)(ab), that the provision should be construed so as to exclude from consideration the kind of practical realities that arise here. Similar matters were taken into account in two successive appeals from magistrates' decisions before Ipp JA of the Supreme Court of Western Australia: Cox v Salt (1994) 12 WAR 12 and Keene v Carter (1994) 12 WAR 20. Indeed, it seems consonant with the statutory purpose and matters regarding statutory context that I have referred to, that the Court may have regard to such considerations.
This is a case where it would be sensible to acknowledge the futility of remitting the matter, and spare the parties the costs involved. It is evident that the valid views expressed by the learned magistrate will inevitably carry the day on a final determination. Therefore it is open to this Court to conclude that the matter need not be remitted. I am satisfied that in this somewhat exceptional scenario it is appropriate to make an order dismissing the motion as no substantial miscarriage of justice has occurred.
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