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McIlvar v Szwarcbord

McIlvar v Szwarcbord

Case [2008] SASC 179 4 July 2008

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SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
MCILVAR v SZWARCBORD
[2008] SASC 179
Judgment of The Honourable Justice White
4 July 2008
CRIMINAL LAW - EVIDENCE - JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE - EVIDENCE UNFAIR TO ADMIT OR IMPROPERLY OBTAINED - GENERALLY
APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - RIGHT OF APPEAL - WHEN APPEAL LIES - FROM INTERLOCUTORY DECISIONS - GENERALLY
MAGISTRATES - APPEALS FROM AND CONTROL OVER MAGISTRATES - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT - WHEN APPEAL LIES AND EFFECT OF DEATH OF PARTY
Application for permission to appeal against rulings by magistrate on admissibility of evidence - whether appeal is competent - whether rulings on evidence are "judgments" - whether permission to appeal should be granted - whether magistrate erred in application of public policy discretion.
Held: appeal incompetent - ruling on admissibility of evidence not a "judgment" for the purposes of s 42 Magistrates Court Act 1991 (SA) - not necessary to consider other issues on appeal.
Magistrates Court Act 1991 (SA) s 3, s 42; Workers Rehabilitation and Compensation Act 1986 (SA) s 120; Education Regulations 1997 (SA) reg 6; Supreme Court Act 1935 (SA) s 50; District Court Act 1991 (SA) s 43; Criminal Appeal Act 1912 (NSW) s 5F; Statutes Amendment (Criminal Procedure) Act 2005 (SA) s 12, referred to.
Legal Practitioners' Complaints Committee v A Practitioner (1987) 46 SASR 126; Corporation of the City of Mitcham v Fusco [2001] SASC 164; Police v Dorizzi (2002) 84 SASR 416; Holder v Lewis (2003) 231 LSJS 431; Osenkowski v Magistrates Court of South Australia (2006) 96 SASR 456, applied.
Police v Edwards [2007] SASC 289, distinguished.
R v Swaffield (1998) 192 CLR 159; Ridgeway v The Queen (1995) 184 CLR 19; R v Lobban (2000) 77 SASR 24; R v Steffan (1993) 30 NSWLR 633; R v Powch (1988) 14 NSWLR 136; Kocer v The Queen [2006] NSWCCA 328; R v Bozatsis (1997) 97 A Crim R 296; R v Piper [2005] NSWCCA 134; Rich v Australian Securities and Investments Commission (2005) 54 ACSR 365, considered.

WORDS AND PHRASES CONSIDERED/DEFINED
"judgment", "decision"

MCILVAR v SZWARCBORD
[2008] SASC 179
Magistrates Appeal
WHITE J:

The appellant is being prosecuted in the Magistrates Court for seven alleged contraventions of s 120(1)(a) of the Workers Rehabilitation and Compensation Act 1986 (SA) (WRCA), ie, obtaining a payment of income maintenance by dishonest means. In addition, the appellant is being prosecuted for 12 alleged contraventions of s 120(1)(c) of the WRCA, ie, making a statement dishonestly in relation to a claim for compensation. These offences are alleged to have occurred at various times in the period between 20 April and 20 June 2005.
At the commencement of his trial, the appellant sought rulings precluding the prosecution from adducing video film evidence of certain of his activities. He submitted in particular that the magistrate should preclude the prosecution from adducing…

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 McIlvar v Szwarcbord

Details

AGLC: McIlvar v Szwarcbord [2008] SASC 179
Case: [2008] SASC 179
Decision Date: 4 July 2008

CaseChat Overview and Summary

The case of McIlvar v Szwarcbord involved an application for permission to appeal against decisions made by a magistrate concerning the admissibility of evidence. The dispute centred around whether the appeal was competent and whether the magistrate's rulings on the admissibility of evidence constituted "judgments" under section 42 of the Magistrates Court Act 1991 (SA). The application was brought before the Supreme Court of South Australia.

The legal issues that the court had to decide included whether the appeal from the magistrate's rulings was competent, whether these rulings qualified as "judgments" for the purposes of the statute, and if permission to appeal should be granted. Additionally, the court had to consider whether the magistrate had erred in exercising the public policy discretion regarding the admissibility of evidence.

The Supreme Court found that the appeal was incompetent as the rulings on the admissibility of evidence did not constitute "judgments" for the purposes of the Act. Consequently, it was not necessary for the court to consider the other issues raised in the appeal. The court's decision hinged on the interpretation of the statutory provision and the nature of the magistrate's rulings. Since the appeal was deemed incompetent, the court did not need to delve into the merits of the case or the magistrate's exercise of discretion.

No further orders were made by the court beyond declaring the appeal incompetent. The decision underscored the importance of correctly identifying the nature of the magistrate's decisions when considering appeals from such rulings.

Orders