Notaras v Earle - [2016] ACTSC 146

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	Notaras v Earle
Citation:	[2016] ACTSC 146
Hearing Date:	26 May 2016
DecisionDate:	5 July 2016
Before:	Burns J
Decision:	The appeal is dismissed.
Catchwords:	CRIMINAL LAW – Particular Offences – driving with a prescribed drug in oral fluid – where sentencing magistrate declined to reduce the automatic disqualification period. PRACTICE AND PROCEDURE – Appeal – jurisdiction – consideration of decision in Burow v The Queen [2015] ACTCA 61 – no jurisdiction to hear the appeal – no “order” imposed – appeal dismissed.
Legislation Cited:	Magistrates Court Act 1930 (ACT) ss 207, 208 Road Transport (Alcohol and Drugs) Act 1977 (ACT) ss 19, 20(1), 34, 111, 112 Supreme Court Act 1933 (ACT) s 20
Cases Cited:	Burow v The Queen [2015] ACTCA 61 Kelly v Apps (2000) 98 FCR 101
Parties:	Pascal Theo Notaras (Appellant) Phillip James Earle (Respondent)
Representation:	Counsel Mr J Sabharwal (Appellant) Mr D Sahu Khan (Respondent)
Solicitors Rachel Bird & Co (Appellant) ACT Director of Public Prosecutions (Respondent)
File Number:	SCA 105 of 2014
Decision under appeal:	Court: ACT Magistrates Court Before: Chief Magistrate Walker Date of Decision: 26 November 2014 Case Title: Earle v Notaras Court File Number: CC 9953 of 2014

BURNS J:

On 26 November 2014, the Chief Magistrate convicted the appellant of the charge that he, being a first offender, on 31 August 2014, having been the driver of a motor vehicle on a road, did have, within the relevant period, a prescribed drug in his oral fluid contrary to s 20(1) of the Road Transport (Alcohol and Drugs) Act 1977 (ACT) (the Alcohol and Drugs Act). The Chief Magistrate then imposed a Good Behaviour Order on the appellant and he was also disqualified from holding a licence for three years. The appellant appeals from the penalty imposed.

On 26 May 2016, the hearing of the appeal came on before me. During that hearing, the appellant made it clear that the only real point of contention on the appeal was the length of the disqualification period imposed at first instance.

I note, for the sake of completeness, that this matter had originally come before Penfold J on 2 April 2015 and was adjourned on that occasion as her Honour considered it appropriate to await the outcome of the Court of Appeal decision in Burow v The Queen [2015] ACTCA 61 (Burow). The matter was adjourned on subsequent occasions for the same reason. I will return to the Court’s decision in Burow later in this judgment.

It is appropriate, before I consider the issue raised on the appeal, to set out the factual background and the proceedings before the Magistrates Court.

The Facts

At about 3.20 pm on Sunday, 31 August 2014, police were conducting a mobile patrol in the suburb of Barton in the Australian Capital Territory. Police observed the appellant travelling north in a Lexus sedan on Telopea Park at 75 kph in a designated 60 kph zone. 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 Notaras v Earle

Details

AGLC: Notaras v Earle [2016] ACTSC 146
Case: [2016] ACTSC 146
Decision Date: 5 July 2016

CaseChat Overview and Summary

The case before the court involved Notaras, the appellant, contesting the sentencing decision of the magistrate, Earle, who was the respondent. The dispute centred around the sentencing for a conviction of driving with a prescribed drug in oral fluid. The appellant argued against the sentencing magistrate's decision to not reduce the automatic disqualification period. This matter was brought before the appellate court to determine whether the magistrate's decision was correct and whether the court had jurisdiction to hear the appeal.

The legal issues before the court included whether the sentencing magistrate had erred in not reducing the automatic disqualification period, and if the court had the jurisdiction to hear the appeal. The appellant's primary argument was that the sentencing magistrate had failed to properly consider the circumstances of the case, particularly the appellant's personal circumstances and the potential impact of the disqualification period on his livelihood. The court had to assess the correctness of the magistrate's decision and determine if the appeal was within the court's jurisdiction, particularly in light of the decision in Burow v The Queen [2015] ACTCA 61.

The court examined the jurisdictional aspects of the appeal, referencing the decision in Burow v The Queen, which established that the court could only hear appeals where an "order" was imposed. The court determined that in this case, no "order" was imposed by the magistrate that could be appealed against. Consequently, the court held that it did not have jurisdiction to hear the appeal. The appeal was dismissed as the court found no basis to overturn the magistrate's decision based on the jurisdictional constraints.

The court dismissed the appeal, affirming that no order was imposed by the magistrate that could be the subject of an appeal. The appeal was thus found to be outside the court's jurisdiction, and the original decision of the magistrate stood.

Orders

Orders of the court

The appeal is dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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