Murray v Maingay - [2008] TASSC 18

[2008] TASSC 18

CITATION: Murray v Maingay [2008] TASSC 18

PARTIES: MURRAY, Timothy Andrew
v

MAINGAY, Sergeant Anthea Jane

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  APPELLATE
FILE NO/S:  903/2007
DELIVERED ON:  8 May 2008
DELIVERED AT:  Launceston
HEARING DATE:  28 April 2008
JUDGMENT OF:  Crawford CJ

CATCHWORDS:

Magistrates – Appeals from and control over magistrates – Tasmania – Motion to review – The hearing – Generally – Adequacy of magistrate's reasons for decision – Whether magistrate adequately dealt with risk inherent in identification evidence.
Casey v Filz B41/1995, followed.
Aust Dig Magistrates [272]

REPRESENTATION:

Counsel:
             Applicant:  S G Wright
             Respondent:  S J Bender
Solicitors:
             Applicant:  Crisp Hudson & Mann
             Respondent:  Director of Public Prosecutions

Judgment Number: [2008] TASSC 18
Number of paragraphs: 25

Serial No 18/2008
File No 903/2007

TIMOTHY ANDREW MURRAY v SERGEANT ANTHEA JANE MAINGAY

REASONS FOR JUDGMENT CRAWFORD CJ
8 May 2008

The applicant appeared before a magistrate charged with two counts of unlawfully possessing more than five abalone contrary to the Fisheries (Abalone) Rules 2000, r17(10(b). One such offence was alleged to have occurred on 28 October 2005 and the other on 4 November 2005. After a defended hearing, the magistrate found both charges proved. On the first, the applicant was fined $1000 and on the second he was fined $2000. In addition, a special penalty of $7700 was imposed on the first and $14,700 on the second.

As finally argued, the motion to review attacks the finding that the charges were proved and the calculation of the special penalties. The first of those attacks concerns whether evidence identifying the applicant as the offender was sufficient, whether the magistrate's reasons for his decision were sufficient so far as the issue of identification is concerned and whether it was necessary for the magistrate to expressly declare that he had warned himself of the perils of accepting evidence of identification. To deal with those issues it is necessary to refer to some of the evidence, submissions made by counsel to the magistrate and his Honour's reasons.

The prosecution case was that Mr Vincent Liu was a waiter employed by the Me Wah restaurant in Invermay Road, Launceston, near its junction with Dry Street, and that on the dates alleged in the complaint he met up with and purchased from the applicant quantities of abalone, which were delivered by the applicant to him at that time. Subsequently, on 7 February 2006, police searched a freezer at Mr Liu's home and recovered three of the four bags of abalone that were purchased by him on 4 November.

The first prosecution witness to give evidence was Constable Conyers. He said that on 4 November 2005, his duty was to carry out surveillance of a person "now known to me as Timothy Andrew Murray, the defendant, seated in the chair there at the blue desk" in the court. He took video footage of the applicant that day. From 10:47 to 10:52am he observed the applicant arrive and use a public…

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 Murray v Maingay

Details

AGLC: Murray v Maingay [2008] TASSC 18
Case: [2008] TASSC 18
Decision Date: 8 May 2008

CaseChat Overview and Summary

In the matter of Murray v Maingay, the dispute was heard before the Supreme Court of Tasmania. The plaintiff, Murray, appealed against a decision made by a magistrate in a criminal proceeding. The primary issue was whether the magistrate's reasons for decision were adequate and whether the magistrate properly addressed the risks associated with the identification evidence provided in the case. The appeal centred on the assessment of the identification evidence and the procedural fairness of the magistrate's decision-making process.

The court was tasked with determining whether the magistrate's reasons were sufficient to justify the decision made. This involved examining whether the magistrate appropriately weighed the reliability of the identification evidence, given the potential risks of misidentification. The court also needed to consider whether the magistrate sufficiently explained the rationale behind their decision, ensuring that the process was transparent and justifiable. The adequacy of the reasons was crucial, as it directly impacted the fairness and integrity of the judicial process.

The court concluded that the magistrate's reasons for decision were adequate. The reasoning provided by the magistrate was found to be sufficient in addressing the inherent risks in the identification evidence. The court found that the magistrate had appropriately considered the reliability of the identification and had provided a clear explanation of their decision. Consequently, the appeal was dismissed, and the original decision of the magistrate was upheld.

Orders