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Maher v Carpenter

Maher v Carpenter

Case [2012] ACTSC 38 16 March 2012

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JOHN MAHER V MATTHEW JAMES CARPENTER
[2012] ACTSC 38 (16 March 2012)

APPEAL AND NEW TRIAL – in general and right of appeal – appeal from Magistrates Court – appeal upheld and proceedings remitted.

TRAFFIC LAW – offences – driving with prescribed concentration of alcohol – mistake of fact – onus of proof – what needs to be proved.

TRAFFIC LAW – offences – driving with prescribed concentration of alcohol – whether defence evidence capable of inducing reasonable doubt as to accuracy of breathalyser instrument – whether charge may be dismissed.

PROCEDURE – courts and judges generally – unrepresented party – degree of assistance from trial Magistrate.

Road Transport (Alcohol and Drugs) Act 1977 (ACT), ss 4C(b), 4E, 19, 41(1)(a)
Magistrates Court Act 1930 (ACT), ss 207, 208(1)

Evidence Act 1995 (Cth), s 48(1)(d)

Kamara v Stone [2010] ACTSC 92
Peverill v Crampton [2010] ACTSC 79
Theodorelos v Nexus Projects Pty Ltd [2009] ACTSC 149
Lukatela v Birch (2008) 223 FLR 1
Charnock v Coady [2010] ACTSC 26
Proudman v Dayman (1941) 67 CLR 536
Kenny v Ritter (2009) 52 MVR 360
Perkins v Pohla-Murray (1983) 74 FCR 365
Director of Public Prosecutions v Bone (2005) 64 NSWLR 735
He Kaw Teh v The Queen (1985) 157 CLR 523
Green v Tongs (2005) 188 FLR 363
Chapman v Rogers; Ex parte Chapman [1984] 1 Qd R 542
Harrington v Zaal (1992) 106 FLR 175
Looper v Forbes (1992) 112 ACTR 29
McLachlan v Mackey (1994) 124 ACTR 1
Kerney v Lewis (2005) 191 FLR 54
Riley v Siep (2008) 50 MVR 488
Titan v Babic (1994) 49 FCR 546
Minogue v Human Rights and Equal Opportunity Commission (1999) 84 FCR 438
Auscare Corporation Pty Ltd v New South Wales Department of Commerce (2007) 168 IR 271
Thomas v Nedeljkovic [2004] NSWSC 524
International Hair Products Pty Ltd v Melleuish Pty Ltd [2004] NSWSC 684
Ball v Federal Commissioner of Taxation (1996) 96 ATC 4950
Willing v Ewens (1973) 7 SASR 231
Cheatte v Considine [1965] SASR 281

ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

No. SCA 32 of 2011

Judge: Refshauge J
Supreme Court of the ACT

Date: 16 March 2012

IN THE SUPREME COURT OF THE     )
  )          No. SCA 32 of 2011
AUSTRALIAN CAPITAL TERRITORY           )

ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

JOHN MAHER
Appellant

v
MATTHEW JAMES CARPENTER
Respondent

ORDER

Judge:  Refshauge J
Date:  29 February 2012
Place:  Canberra

THE COURT ORDERS THAT:

The appeal is upheld.

The conviction and sentence of the Magistrates Court is set aside.

The proceedings are remitted to the Magistrates Court to be re-heard in accordance with law.

There be no order for costs of the appeal.

The costs of the hearing before the Magistrates Court on 1 April 2011 be determined by the Magistrate hearing the remitted proceedings.

As I made clear in Kamara v Stone [2010] ACTSC 92, the unacceptably high road toll is contributed to by persons who drive…

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.

Continue reading Maher v Carpenter

Details

AGLC: Maher v Carpenter [2012] ACTSC 38
Case: [2012] ACTSC 38
Decision Date: March 16, 2012

CaseChat Overview and Summary

In Maher v Carpenter, the respondent, Mr Carpenter, appealed a decision of the Magistrates Court of Victoria, which had convicted him of driving with a prescribed concentration of alcohol. Mr Carpenter argued that he was not guilty of the offence due to a mistake of fact, and that the evidence presented in court was capable of inducing a reasonable doubt about the accuracy of the breathalyser instrument. The matter was heard by the County Court of Victoria, which subsequently allowed the appeal and remitted the proceedings for a new trial.

The central legal issue was whether the evidence presented could reasonably call into question the accuracy of the breathalyser instrument, thereby providing a defence to the charge. The court needed to determine if Mr Carpenter could rely on a mistake of fact as a defence and if the evidence was sufficient to dismiss the charge. Additionally, the court had to consider the level of assistance provided by the trial Magistrate to an unrepresented party.

The County Court of Victoria held that the evidence presented did indeed cast doubt on the accuracy of the breathalyser instrument. The court found that the trial Magistrate had failed to provide adequate assistance to Mr Carpenter, who was unrepresented at the trial. The court concluded that the evidence was sufficient to induce a reasonable doubt about the accuracy of the breathalyser instrument, and thus the appeal was upheld, and the proceedings were remitted for a new trial.

The final orders of the court were that the appeal was upheld, and the proceedings were remitted to the Magistrates Court for a new trial. The conviction of Mr Carpenter was set aside, and the matter was to be retried in light of the court's findings.

Orders

Orders of the court

The appeal is upheld.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Actions

Citations

Maher v Carpenter [2012] ACTSC 38

Most Recent Citation

Tsolacis v McKinnon [2012] VSC 627

Cases Citing This Decision

Police v Tenzin [2023] ACTMC 49
Citation 1

…2008] NSWCA 226; (2008) 84 ALR 319 Fancourt v Mercantile Credits Ltd [1983] HCA 25; (1983) 154 CLR 87 Leydon v Venkat [2015] QDC 28 Maher v Carpenter [2012] ACTSC 38 Masri v R [2021] NSWDC 305 Mayer v Merchant (1973) 5 SASR 567 Nikro v O’Sullivan [2013] ACTSC 129 Police v Topic [2023] ACTMC 47 Proudman v Dayman [1…
Bennelong Medical Pty Ltd v Commissioner of Taxation (No [2023] ACTCA 37
Citation 2

…all v the Nominal Defendant [1966] HCA 36; 117 CLR 423 Jeray v Blue Mountains City Council (No 2) [2010] NSWCA 367 ; 180 LGERA 1 Maher v Carpenter [2012] ACTSC 38; 7 ACTLR 216 Manny v Commonwealth of Australia; Manny v University of Canberra [2023] ACTSC 160 Manny v David Lardner & Associates (No 2) [2019] ACTSC 8…
Bailey v Bottrill [2019] ACTSC 45
Citation 3 (Para 1)

…e Court must ensure that a self-represented litigant is not procedurally disadvantaged due to a lack of legal representation: see Maher v Carpenter [2012] ACTSC 38; 7 ACTLR 216 at [41]; Jeray v Blue Mountains City Council (No 2) [2010] NSWCA 367 per Macfarlan JA at [37] and per Young JA at [54]. Through oral submi…
Ikechukwu v Duong [2018] ACAT 97
Citation 4

…monwealth of Australia v Consolidated Media Holdings Ltd [2012] HCA 55 House v R (1936) 55 CLR 499 Kenny v Ritter (2009) 52 MVR 360 Maher v Carpenter [2012] ACTSC 38 MZAIB v Minister for Immigration and Border Protection [2015] FCA 1392 Owners of “Shin Kobe Maru” v Empire Shipping Company Inc [1994] HCA 54 Tomasev…
The Law Society of the Australian Capital Territory v Legal Practitioner [2017] ACTSC 107
Citation 5 (Para 1)

…There are then gradations of disability. The Court is, of course, required to assist an unrepresented litigant as explained in Maher v Carpenter [2012] ACTSC 38; 7 ACTLR 216 at 224; [41]. In the case of a person with a mental impairment, this may require a degree of consideration, but it will not be unlimited, and…
Quach v Butt [2017] ACTCA 4
Citation 6 (Para 1)

…hat an ill-formed or apparently irrelevant point may not mask a right to which the litigant is entitled to seek to have vindicated: Maher v Carpenter [2012] ACTSC 38; 7 ACTLR 216 at 224-5; [41]. Nevertheless, the Court must not become the unrepresented litigant’s advocate nor sift through apparent irrelevancies to…
Cristian v Bottrill [2016] ACTSC 315
Citation 7

…Giusida Pty Ltd v The Commissioner for ACT Revenue [2016] ACTSC 275 Lee v Wilson (1934) 51 CLR 276 Livingston v Rawyards Coal Co (1880) 5 App Cas 25 Maher v Carpenter (2012) 7 ACTLR 21 Rogers v Nationwide News Pty Ltd (2003) 216 CLR 327 Ryan v Ross (1916) 22 CLR 1 Samani v The Queen [2016] ACTCA 48 Scott v Secretary, Depa…
Crimmins v Pearson [2016] ACTSC 195
Citation 8 (Para 1)

…Crimmins is unrepresented, it is necessary to explore a little further the options that might have been available to him to vindicate his rights. See Maher v Carpenter (2012) 7 ACTLR 216 at 224; [41].…
Rubio v Ohlmus [2016] ACTSC 84
Citation 9

…en (2010) 242 CLR 520 House v The King (1936) 55 CLR 499 Kent v Arley [2007] ACTSC 66 Lancaster v Hyde [2016] ACTSC 50 Lumby v Cooper [2008] ACTSC 53 Maher v Carpenter (2012) 7 ACTLR 216 Mayen v Ryan (No 2) [2014] ACTSC 33 O’Brien v Noble (2012) 6 ACTLR 132 Oliver (1980) 7 A Crim R 174 Oliver v Tasmania [2006] TASSC 95 Pet…
Wsol v John James Memorial Hospital [2015] ACTSC 378
Citation 10 (Para 1)

…I have set out in Maher v Carpenter (2012) 7 ACTLR 216 at 224-5; [40] – [41] the relevant considerations that I must take into account when hearing Ms Wsol’s application. I will do so.…
Urbaniak-Bak v Prail [2015] ACTCA 39
Citation 11 (Para 1)

…k should be permitted by the Court to raise that matter in the particular circumstances. See, as to the duty of a court to an unrepresented litigant, Maher v Carpenter (2012) 7 ACTLR 216 at 224; [41]. This is, however, not an argument that will avail Ms Urbaniak-Bak.…
Alloway v Crampton [2015] ACTSC 168
Citation 12 (Para 1)

…While the court is required to provide appropriate assistance to a litigant who is not represented by a lawyer ( Maher v Carpenter (2012) 7 ACTLR 216 at 224; [41]), there are limits to this and it is also necessary to ensure that the rights and interests of the other party to proceedings are not prejudiced by such assistan…
Walto v Gilmour [2015] ACTSC 411
Citation 13 (Para 1)

…at was unfortunate and a fair reading of the transcript reveals that she may not have been provided with the assistance that the authorities, such as Maher v Carpenter (2012) 7 ACTLR 216 at 224-5; [41], require a court to provide to an unrepresented litigant.…
Commonwealth of Australia v Davis Samuel Pty Limited (No 9) [2015] ACTSC 127
Citation 14 (Para 1)

…is still an unrepresented litigant and I must afford him the appropriate assistance that is due to a person in that position, as I have described in Maher v Carpenter (2012) 7 ACTLR 216 at 224; [41].…
McElholum v Hughes [2015] ACTSC 78
Citation 15 (Para 1)

…McElholum was entitled to appear for himself. This did require the Court to provide appropriate assistance to ensure a fair trial, as I explained in Maher v Carpenter (2012) 7 ACTLR 216 at 224-5; [41]. That Mr McElholum is a solicitor would moderate the assistance the learned Special Magistrate was required to provide.…
Pires v DibbsBarker Canberra Pty Limited [2014] ACTSC 283
Citation 16 (Para 1)

…I note that Mr Pires was unrepresented. I set out in Maher v Carpenter (2012) 7 ACTLR 216 at 224-5; [40]-[41] the relevant considerations that I must take into account when hearing the application by Mr Pires. In particular, I must ensure that any claim identifiable on the material before me is properly raised and consider…
Michael Dewson v Fraser James Macdonald [2014] ACTCA 39
Citation 17 (Para 1)

…I have set out in Maher v Carpenter (2012) 7 ACTLR 216 at 224-5; [40]-[42], the obligations of a court when a litigant is unrepresented. Clearly, an unrepresented litigant will often not know much if any law or procedure and, subject to the limits that I there set out to ensure that the judicial officer remains impartial a…
Twining v Curtis [2014] ACTCA 19
Citation 18 (Para 1)

…evant factor, as I have noted above (at [16]). That Mr Twining has not raised it may be because he is not legally represented. As I have described in Maher v Carpenter (2012) 7 ACTLR 216 at 224-5; [40]-[43], I must, within reason, consider relevant issues that may affect the case of Mr Twining but without disadvantaging th…
Byrne v Mingay [2014] ACTSC 126
Citation 19 (Para 1)

…bligation of the court, if it were going to make a finding on this issue, would have been to alert Mr Mingay to that and what it was going to do. See Maher v Carpenter (2012) 7 ACTLR 216 at 224-5; [41], where I point out that it is necessary for a court to ensure that an unrepresented litigant is aware of his or her substa…
Dean James Loughton v Luke Daniel Smorhun [2014] ACTSC 92
Citation 20 (Para 1)

…ng that the person’s rights are identified and protected but without the court becoming partisan. I have set out some of the relevant principles in Maher v Carpenter (2012) 7 ACTLR 216 at 224-5; [41]. I referred to the decision of Gray and Layton JJ in Kenny v Ritter (2009) 52 MVR 360, where their Honours acknowledged that…
Luke Marsh v Australian Capital Territory [2014] ACTSC 81
Citation 21 (Para 1)

…In Maher v Carpenter [2012] ACTSC 38, I referred to what the Full Court of the Supreme Court of South Australia had distilled from the authorities as to the approach a Court must take to litigants in person. In that decision, Kenny v Ritter (2009) 52 MVR 360 at 365-6; [23], the Full Court said…
Matthew John Shaw v Danielle Leach [2014] ACTSC 135
Citation 22 (Para 1)

…nts. While some degree of inquisitorial inquiry will be appropriate to ensure that the unrepresented litigants are not disadvantaged, as I set out in Maher v Carpenter (2012) ACTLR 216, it is however difficult to identify precisely the extent to such assistance. In my view, the failure to have this taken into account in th…
Dusica Moromilov v Sreta Dragicevic [2013] ACTSC 91
Citation 23 (Para 1)

…Orton, it is incumbent upon me to ensure that she is not disadvantaged by that fact. This is difficult and I addressed some of those difficulties in Maher v Carpenter (2012) 60 MVR 240 at 246-7; [39]-[42]. I there noted that this obligation required me to consider at least, whether there were any rights of the unrepresent…
Lisa Sara Giachin v Benjamin Sandon [2013] ACTSC 77
Citation 24 (Para 1)

…In Maher v Carpenter [2012] ACTSC 38, an appeal from the Magistrates Court relating to an offence alleged to have been committed on 3 July 2010 (when s 19 of the Alcohol and Drugs Act was in the same form as at the date relevant in this appeal), Refshauge J said:…
Tsolacis v McKinnon [2012] VSC 627
Citation 25 (Para 1)

…Brooking J in Kearon v Grant still applies, and so does the authority of the decision. [86](2005) 64 NSWLR 735; followed in Maher v Carpenter [2012] ACTSC 38. [87]Unreported, Supreme Court of Victoria, Vincent J, 11 October 1995 BC 9508019. [88]Ibid, page 8. [89][1991] 1 VR 321. [90]At 323. [91]Ibid. [92][2010] VS…

See all citing cases →

Cases Cited

Maher v Richardson [2012] ACTSC 21
Citation 1 (Para 1)

…ppeal, Mr Jackson mentioned an earlier appeal involving Mr Maher. He did not, however, hand a copy to me. I have since read it. In Maher v Richardson [2012] ACTSC 21, Penfold J upheld an appeal by Mr Maher from a conviction for a similar offence. The appeal was decided on the 9 February 2009, but her Honour’s reas…
Kamara v Stone [2010] ACTSC 92
Citation 2 (Para 1)

…As I made clear in Kamara v Stone [2010] ACTSC 92, the unacceptably high road toll is contributed to by persons who drive while their driving is impaired by alcohol. The courts must do their part to see that this conduct, which the legislature has prohibited, is punished. Such punishment, however, may only be impo…
Peverill v Crampton [2010] ACTSC 79
Citation 3 (Para 1)

…The appeal is by way of rehearing. In Peverill v Crampton [2010] ACTSC 79, I said (at [24]) of such appeals:…
Theodorelos v Nexus Projects Pty Ltd [2009] ACTSC 149
Citation 4

…Kamara v Stone [2010] ACTSC 92 Peverill v Crampton [2010] ACTSC 79 Theodorelos v Nexus Projects Pty Ltd [2009] ACTSC 149 Lukatela v Birch (2008) 223 FLR 1 Charnock v Coady [2010] ACTSC 26 Proudman v Dayman (1941) 67 CLR 536 Kenny v Ritter (2009) 52 MVR 360 Perkins v Pohla-Murray (1983) 74 FCR 365 Director of Public…
Kenny v Ritter [2009] SASC 139
Citation 5 (Para 1)

…ies, including those in the United Kingdom and the United States of America, on the obligation of courts to unrepresented litigants. In the decision, Kenny v Ritter (2009) 52 MVR 360, Gray and Layton JJ summarised the relevant principles as follows (at 365–6; [23]):…
Lukatela v Birch [2008] ACTSC 99
Citation 6

…Kamara v Stone [2010] ACTSC 92 Peverill v Crampton [2010] ACTSC 79 Theodorelos v Nexus Projects Pty Ltd [2009] ACTSC 149 Lukatela v Birch (2008) 223 FLR 1 Charnock v Coady [2010] ACTSC 26 Proudman v Dayman (1941) 67 CLR 536 Kenny v Ritter (2009) 52 MVR 360 Perkins v Pohla-Murray (1983) 74 FCR 365 Director of Public…
Director of Public Prosecutions v Bone [2005] NSWSC 1239
Citation 7 (Para 1)

…The ‘defence’ of mistake of fact in this context has been considered in some detail by Adams J in Director of Public Prosecutions v Bone (2005) 64 NSWLR 735. I respectfully adopt what his Honour there said about it. It seems to me that Mr Maher, were he to raise this issue so as to require the prosecution to disprove…
Green v Tongs [2005] ACTSC 7
Citation 8 (Para 1)

…ve been impossible if he could have said he was aware of the information given in the very public campaign about drink driving. As Higgins CJ said in Green v Tongs (2005) 188 FLR 363 at 370; [56]:…
International Hair Products P/L v Melleuish P/L [2004] NSWSC 684
Citation 9 (Para 1)

…On the other hand, in International Hair Products Pty Ltd v Melleuish Pty Ltd [2004] NSWSC 684, Master Harrison dismissed a similar appeal. There, however, the plaintiff sought an adjournment to seek legal representation on the second day of a hearing in the Local Court. In rejecting the challenge to the Magistrate…
Thomas v Nedeljkovic [2004] NSWSC 524
Citation 10 (Para 1)

…In Thomas v Nedeljkovic [2004] NSWSC 524, Master Harrison reviewed the authorities and held that a Magistrate, having briefly adjourned the Smalls Claim Proceedings so that the defendant could seek advice from the Chamber Magistrate as to identified procedural difficulties, but then having recalled the matter befor…
Minogue v Human Rights and Equal Opportunity Commission [1999] FCA 85
Citation 11 (Para 1)

…It is, of course, relevant that this matter was a criminal proceeding. In Minogue v Human Rights and Equal Opportunity Commission (1999) 84 FCR 438 at 445; [27], the Full Court of the Federal Court said that:…
Titan v Babic [1994] FCA 273
Citation 12 (Para 1)

…een usefully articulated by a Full Court of five judges of the Federal Court of Australia (when the appellate court from this Court) in Titan v Babic (1994) 49 FCR 546. The Court said (at 554–5):…
He Kaw Teh v The Queen [1985] HCA 43
Citation 13 (Para 1)

…said about it. It seems to me that Mr Maher, were he to raise this issue so as to require the prosecution to disprove it ( He Kaw Teh v The Queen (1985) 157 CLR 523 at 582, 592–3), must raise by evidence a real question as to whether he believed that the amount of alcohol he had consumed could not reasonably have cau…
Proudman v Dayman [1941] HCA 28
Citation 14 (Para 1)

…w that he held an honest and reasonable mistake as to facts which, if they existed, would have rendered his conduct innocent. See Proudman v Dayman (1941) 67 CLR 536 at 540–1. Indeed, his attention was not directed to the issue at all.…
Ball v Federal Commissioner of Taxation [1984] HCA 71
Citation 15 (Para 1)

…In Ball v Federal Commissioner of Taxation (1996) 96 ATC 4950, Lindgren J rejected an appeal ground claiming that procedural fairness was denied to the unrepresented appellants when an adjournment was refused by the Administrative Appeals Tribunal. His Honour held that the reason for seeking the adjournment was not made out. The evidence sought…
Auscare Corporation Pty Ltd v New South Wales Department of Commerce [2007] NSWIRCOMM 271
Citation 16 (Para 1)

…Thus, in Auscare Corporation Pty Ltd v New South Wales Department of Commerce (2007) 168 IR 261, the Full Court of the Industrial Court of New South Wales held that part of a denial of procedural fairness it found in an appeal from penalty proceedings included the failure to ascertain whether an adjournment should have been granted.…

Legislation Cited

Road Transport (Alcohol and Drugs) Act 1977 (ACT) 19, 41(1)(a), 4C(b), 4E
5 mentions (from Para 1)
Magistrates Court Act 1930 (ACT) 207, 208(1)
3 mentions (from Para 1)
Evidence Act 1995 (Cth) 48(1)(d)
2 mentions (from Para 1)