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Nilsson v McDonald

Nilsson v McDonald

Case [2009] TASSC 1 16 January 2009

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[2009] TASSC 1

CITATION: Nilsson v McDonald [2009] TASSC 1

PARTIES:  NILSSON, Sigrid
  v
  McDONALD, SCOTT (SERGEANT)

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  APPELLATE
FILE NO/S:  LCA 700/2008
DELIVERED ON:  16 January 2009
DELIVERED AT:  Hobart
HEARING DATE:  5 December 2008
JUDGMENT OF:  Tennent J

CATCHWORDS:

Magistrates – Appeal and review – Tasmania – Motion to review – The hearing – Generally – Application for hearing de novo - Circumstances in which it is appropriate to order hearing de novo.
Magistrates – Appeal and review – Tasmania – Motion to review – The hearing – Generally – Offence pursuant to the Justices Act 1959, s15B(2) – Matters to be proved.
Magistrates – Appeal and review – Tasmania – Motion to review – The hearing – Generally – Offence pursuant to the Justices Act 1959, s15B(2) – What constitutes a breach of the peace.
Magistrates – Appeal and review – Tasmania – Motion to review – The hearing – Generally – Offence pursuant to the Justices Act 1959, s15B(2) – What is a public place.

Police Offences Act 1935 (Tas), ss3, 15B.
Justices Act 1959 (Tas), ss30, 31, 107, 110, 111.
Acts Interpretation Act1931 (Tas), ss4, 46.
Sentencing Act 1997 (Tas), s7.
Dilworth v Commissioner of Stamps [1899] AC 99; YZ Finance Co Pty Ltd v Cummings (1964) 109 CLR 395;
Stewart v Fletcher, unreported, 2 August 1988; McIvor v Garlick [1972] VR 129; R v Howell [1982] 1 QB 416; Innes v Weate (1984) 12 A Crim R 45; Addison v Chief Constable of the West Midlands Police [2004] 1 WLR 29, referred to.
Aust Dig Magistrates [272]

REPRESENTATION:

Counsel:
             Appellant:  In person
             Respondent:  K Brown
Solicitors:
             Respondent:  Director of Public Prosecutions

Judgment Number: [2009] TASSC 1
Number of paragraphs: 54

Serial No 1/2009
File No LCA 700/2008

SIGRID NILSSON v SERGEANT SCOTT McDONALD

REASONS FOR JUDGMENT TENNENT J

16 January 2009

The applicant, Sigrid Nilsson, was found guilty by a magistrate of failing to obey the direction of a police officer, contrary to the Police Offences Act 1935 ("the Act"), s15B(2). The learned magistrate did not record a conviction but disposed of the matter by way of an undertaking and adjournment pursuant to the Sentencing Act 1997, s7(f). The applicant has sought a review of the decision of the learned magistrate. The grounds of review, as amended at the hearing, are in the following terms:

"1AHis Honour erred in failing to address the issue whether the alleged conduct of the defendant occurred in a public place or, alternatively, erred in finding that the alleged conduct of the defendant occurred in a public place;
1His Honour erred in not dismissing the original complaint under s 31(2)(b) of the Justices Act1959 because the original complaint was defective in failing to specify the offence that the defendant had committed or was likely to commit and this caused prejudice to the defendant.
3His Honour erred in not dismissing the original complaint under s 31(2)(b)…

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 Nilsson v McDonald

Details

AGLC: Nilsson v McDonald [2009] TASSC 1
Case: [2009] TASSC 1
Decision Date: 16 January 2009

CaseChat Overview and Summary

Nilsson was appealing against a conviction in the Magistrates Court of Tasmania for an offence under the Justices Act 1959. The appeal was based on a motion to review the hearing, challenging the appropriateness of a hearing de novo. The central issue was whether the lower court had erred in its interpretation of the relevant sections of the Justices Act 1959, specifically concerning the proof of matters necessary for conviction under section 15B(2) and the definitions of breach of the peace and public place.

The court was required to determine whether the lower court's interpretation of the legislation was correct, particularly in relation to what constituted a breach of the peace and a public place. Additionally, the court had to assess whether the application for a hearing de novo was justified, considering the circumstances of the case. The appeal hinged on the interpretation of statutory provisions and the procedural correctness of the lower court’s handling of the matter.

The court found that the lower court had correctly interpreted the statutory provisions and the relevant legal principles. The court held that the interpretation of the term "breach of the peace" and "public place" was consistent with established legal standards. It was determined that the evidence presented was sufficient to meet the requirements of the Justices Act 1959, and there was no basis for a hearing de novo. The appeal was dismissed, and the conviction was upheld.

The court did not order a hearing de novo and dismissed the motion to review. The conviction of Nilsson under the Justices Act 1959 was confirmed.

Orders