Marshall v Tasmania - [2018] TASSC 11

[2018] TASSC 11

COURT: SUPREME COURT OF TASMANIA

CITATION: Marshall v Tasmania [2018] TASSC 11

PARTIES:  MARSHALL, Julie
  v
  STATE OF TASMANIA

FILE NO:  2809/2017
DELIVERED ON:  9 March 2018
DELIVERED AT:  Hobart
HEARING DATE:  14, 22 February, 5 March 2018
JUDGMENT OF:  Brett J

CATCHWORDS:

Magistrates – Appeal and review – Tasmania – Motion to review – When remedy available – Applicant alleged she was not aware complainant had died prior to pleading guilty, and pleaded guilty despite maintaining her innocence – Submissions and information presented to magistrate confirmed applicant's pleas of guilty were unequivocal admissions of guilt – Error must be established on the material presented to the magistrate – No error on part of magistrate – Alleged miscarriage of justice leading to "unwitting error" on part of magistrate not sufficient as a ground of review – Motion dismissed.

Justices Act 1959 (Tas), ss 107(4), 111.
Traynor v McCullough [2011] TASSC 41, followed.
Aust Dig Magistrates [1345]

REPRESENTATION:

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

Judgment Number: [2018] TASSC 11
Number of paragraphs: 15

Serial No 11/2018
File No 2809/2017

JULIE MARSHALL v STATE OF TASMANIA

REASONS FOR JUDGMENT BRETT J

9 March 2018

This motion to review relates to a sentence imposed by Magistrate R Marron on the applicant on 11 September 2017. On 5 March 2018, I dismissed the motion. These are my reasons for doing so.
The applicant had been charged on two separate complaints with a total of 36 offences. The charges variously alleged acts of dishonestly acquiring a financial advantage and computer-related fraud. The alleged victim of all of the offences was David John King. The material provided to me reveals that Mr King, some years ago, had been involved in a serious accident which had left him with an acquired brain injury. The applicant had a friendship with Mr King for many years. The gravamen of the allegations against the applicant was that she had dishonestly used Mr King's debit and/or credit cards to either obtain money or pay for her own expenses, including those incurred at various retail outlets. When confronted by police in relation to these allegations, the applicant had conceded that she had used Mr King's cards from time to time, but claimed to have done so with his agreement.
On 18 July 2017, the applicant entered a plea of guilty to 5 of the 36 charges. After the pleas had been entered, the prosecution tendered no evidence in respect of the balance of the charges, and they were dismissed by the magistrate. The applicant was represented by counsel, Mr Bearman, throughout the proceedings, including this hearing. I infer that an agreement had been reached between the defence and the prosecution that was in accordance with the outcome adopted by each party on that day.
The magistrate heard the prosecution facts and a plea in mitigation on 5 September 2017. The thrust of the…

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 Marshall v Tasmania

Details

AGLC: Marshall v Tasmania [2018] TASSC 11
Case: [2018] TASSC 11
Decision Date: 9 March 2018

CaseChat Overview and Summary

Marshall brought an appeal against a decision made by a magistrate in Tasmania. The applicant contended that she was unaware that the complainant had passed away before pleading guilty and that she entered a guilty plea despite maintaining her innocence. Marshall argued that this constituted a miscarriage of justice and sought a review of the magistrate's decision. The central issue before the court was whether the applicant's lack of awareness about the complainant's death prior to entering a guilty plea constituted an error on the part of the magistrate sufficient to warrant a review. The court needed to determine if the alleged error, or "unwitting error," on the part of the magistrate could be a valid ground for review under the relevant legislation.

The court carefully examined the submissions and information presented to the magistrate at the time of the plea. It found that the applicant's pleas of guilty were unequivocal admissions of guilt, and there was no indication that she was unaware of the complainant's death. The court held that any error must be established based on the material presented to the magistrate at the time of the plea, and in this case, no such error was evident. The court concluded that the alleged miscarriage of justice, leading to an "unwitting error" on the part of the magistrate, was not a sufficient ground for review. Therefore, the motion for review was dismissed.

The court's decision emphasised the importance of clear and unequivocal pleas of guilty and the requirement that any alleged error must be established based on the material presented to the magistrate at the time of the plea. The court held that an "unwitting error" on the part of the magistrate, without any evidence of an actual error in the proceedings, was insufficient to warrant a review of the decision. As a result, the applicant's motion for review was dismissed, and the original decision of the magistrate was upheld.

Orders