Nicholas v Hibble - [2007] TASSC 26

[2007] TASSC 26

CITATION: Nicholas v Hibble [2007] TASSC 26

PARTIES: NICHOLAS, Bevan Vernard
v

HIBBLE, Kim

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  APPELLATE
FILE NO/S:  LDR LCA 2/2007
DELIVERED ON:  26 April 2007
DELIVERED AT:  Launceston
HEARING DATE:  16 April 2007
JUDGMENT OF:  Crawford J

CATCHWORDS:

Magistrates – Appeals from and control over magistrates – Tasmania – Motion to review – When remedy available – Whether order under Community Protection (Offending Reporting) Act 2005 is a reviewable order.
Justice Act 1959 (Tas), s107(1); Community Protection (Offender Reporting) Act 2005 (Tas), s13(e)(ii).
Aust Dig Magistrates [270]

REPRESENTATION:

Counsel:
             Applicant:  In person
             Respondent:  J P Ransom
Solicitors:
             Applicant:  In person
             Respondent:  Director of Public Prosecutions

Judgment Number: [2007] TASSC 26
Number of paragraphs: 16

Serial No 26/2007
File No LDR LCA 2/2007

BEVAN VERNARD NICHOLAS v KIM HIBBLE

REASONS FOR JUDGMENT CRAWFORD J
26 APRIL 2007

The applicant pleaded guilty before a magistrate to three offences. On complaint 30271/06, the first charge was that on 21 July 2005 he possessed a child abuse product, namely 42 images of young persons on his computer and 86 images of young persons on a compact disc, contrary to the Classification (Publications, Films and Computer Games) Act 1995 ("the Classification Act"), s74(a), and the second charge was that on the same date he possessed a bestiality product, namely two images of bestiality on his computer and 57 images of bestiality on compact disc and two video files of bestiality on his computer and 107 bestiality video files on compact disc, contrary to s74(b). On complaint 40314/06, the charge was that on the same date he made a bestiality product, namely a homemade video of a person having sex with a small female black pony inside his premises at Frankford, contrary to s72(c). He was convicted, fined $4,000 and ordered to pay costs of $160. According to the transcript, he was allowed 10 months to pay, but the record that was made of the order was that he was allowed eight months to pay. Following that being pointed out by the respondent's counsel and at his invitation, it will be ordered, pursuant to the Justices Act 1959, s110(2)(f), that the applicant is allowed to pay the fine and costs within 10 months of 30 January 2007 in place of the recorded order allowing him eight months to pay.

It was also ordered, pursuant to the Community Protection (Offender Reporting) Act 2005 ("the Reporting Act"), that the Registrar cause the name of the applicant to be placed on the Register for eight years.

The applicant has moved the Court to review the orders. The sole ground for review in the notice to review is expressed as being "that the learned magistrate erred in that the sentence imposed was manifestly excessive in all the circumstances". However, at the hearing the applicant explained that he was seeking a review of the order that was made under the Reporting Act and not of the fine or…

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 Nicholas v Hibble

Details

AGLC: Nicholas v Hibble [2007] TASSC 26
Case: [2007] TASSC 26
Decision Date: 26 April 2007

CaseChat Overview and Summary

In the case of Nicholas v Hibble, the dispute involved a motion to review a decision made by a magistrate under the Community Protection (Offending Reporting) Act 2005 in the state of Tasmania. The applicant, Nicholas, sought to challenge the magistrate's decision through an application for review. The legal issues at the heart of the case centred on the nature of the magistrate's order and whether it was amenable to review under the relevant legislative framework.

The court had to determine whether the order made by the magistrate was a reviewable order within the meaning of the applicable legislation. This required an examination of the statutory provisions governing the review of magistrate decisions and the extent to which such provisions allowed for judicial oversight of such orders. The court needed to assess whether the statutory scheme provided an avenue for review of the magistrate's order, given that it was made under the Community Protection (Offending Reporting) Act 2005.

Upon reviewing the statutory language and the case law on the subject, the court concluded that the order made by the magistrate was not a reviewable order under the Act. The court found that the statutory provisions did not provide for the type of review sought by Nicholas, and therefore, the application for review was not permissible. The court's decision was grounded in the interpretation of the relevant legislative provisions and the established legal principles concerning the scope of judicial review in this context.

As a result of the court's decision, the application for review was dismissed. The court held that the magistrate's order under the Community Protection (Offending Reporting) Act 2005 was not subject to review, and therefore, the motion to review was not available to the applicant. This outcome underscored the importance of carefully considering the statutory framework and the specific provisions that govern the review of magistrate decisions in the context of the Act.

Orders