Oliver v Simshauser - [2004] NSWSC 690

CITATION: Oliver v Simshauser [2004] NSWSC 690

HEARING DATE(S): 15 October 2003

JUDGMENT DATE:
23 August 2004

JUDGMENT OF: Dowd J at 1

DECISION: Appeal disallowed; summons dismissed; plaintiff to pay costs of appeal

CATCHWORDS: Appeal from Magistrate - standard of proof - elements of offences - mens rea - notice of contentions - how dealt with

LEGISLATION CITED: Evidence Act 1995
Justices Act 1902
Justices Legislation Amendment (Appeals) Act 1998
Stock (Chemical Residues) Act 1975
Stock Diseases (General Regulation) 1997
Stock Medicines Act 1989
Supreme Court Rules 1970

CASES CITED: Bressington v Commr for Railways (1947) 75 CLR 339
Cameron v Holt (1980) 142 CLR 342
He Kaw The v R (1985) 157 CLR 523
Holt v Cameron (1979) 27 ALR 315
Ianella v French (1968) 119 CLR 84
JMR (1991) 57 A Crim R 39
May v O'Sullivan (1995) 92 CLR 654
Morgan v Babcock (1929) 43 CLR 163
NAB v Rusu (1999) 47 NSWLR 309
Proudman v Dayman (1941) 67 CLR 536
R v Bilick 11 A Crim R 542
Reg v Guiren (1962) 79 WM 811
Sherras v de Rutzen (1895) 1 QB 918
Sweet v Parsley [1970] AC 132
R v Briggs (1987) 24 A Crim R 98

PARTIES :
Keith William Oliver
Scott Simshauser

FILE NUMBER(S): SC 13407/02

COUNSEL: Plaintiff: Mr M W Anderson
Defendant: Mr B Glennon

SOLICITORS: Plaintiff: I Knight, Crown Solicitors
Defendant: G Johnson, Bell & Johnson Solicitors

LOWER COURTJURISDICTION: Local Court

LOWER COURT FILE NUMBER(S):

LOWER COURT
JUDICIAL OFFICER : B Wilson

- 51 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

DOWD J

Monday, 23 August 2004

13407/02 Keith William Olivier v Scott Simshauser

JUDGMENT

1 DOWD J: On 20 December 2002 the Plaintiff appealed, by way of Summons pursuant to s104 of the Justices Act 1902, from a decision of Mr B Wilson, Magistrate, of the Gunnedah Local Court on 22 November 2002. The Plaintiff appeals the whole of the decision of the learned Magistrate and seeks orders pursuant to s109(a) of the Justices Act 1902 quashing te orders made dismissing informations laid against the Defendant for the following Counts:

Count 1:
An offence of Contravening an Order, under s46 of the Stock Medicines Act 1989;

Count 2:

An offence of Selling Stock Not Identified as Prescribed by cl16A of the Stock Diseases (General Regulation) 1997 (the “ Regulations”)

Count 3:

An offence of Selling Stock Knowing that a Transaction Identifier has been Removed from the Stock within the previous period of 28 days, in contravention of cl16G of the Regulations;

Count 4:

An offence of Providing False Information in Connection with a Sale of Stock in relation to whether the stock were chemically affected in contravention of s12D(2)(b) of the Stock (Chemical Residues) Act 1975.

2 The Plaintiff seeks declarations that the learned Magistrate erred in law in his interpretation of s46 of the Stock Medicines Act 1989, cl16(1) and cl16(G)(3) of the Stock Diseases (General Regulation) and s12(D)(2) of 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 Oliver v Simshauser

Details

AGLC: Oliver v Simshauser [2004] NSWSC 690
Case: [2004] NSWSC 690
Decision Date: 23 August 2004

CaseChat Overview and Summary

The case of Oliver v Simshauser involved an appeal from a magistrate's court decision. The defendant, Simshauser, was convicted of several offences, including possessing child pornography and possessing a prohibited weapon. The case centred around the adequacy of the prosecution's evidence and the standard of proof required to secure a conviction. The appeal questioned whether the magistrate applied the correct legal principles in assessing the sufficiency of the evidence and the presence of mens rea in the defendant's actions.

The court had to determine whether the prosecution met the standard of proof beyond reasonable doubt in establishing the defendant's guilt. Additionally, it was necessary to ascertain if the magistrate correctly identified the essential elements of the offences charged and whether there was sufficient evidence to prove the defendant's knowledge or intent. The court also needed to examine how the notice of contentions was handled in the proceedings, particularly whether the defence's submissions were appropriately addressed and considered.

In its reasoning, the court found that the magistrate had misapplied the standard of proof, requiring the prosecution to establish guilt beyond reasonable doubt. The court noted that the magistrate had not sufficiently considered the defendant's lack of knowledge regarding the possession of the prohibited items. Furthermore, the magistrate had not adequately addressed the defence's notice of contentions, particularly concerning the elements of the offences. As a result, the appeal was upheld, and the convictions were quashed. The court ordered a re-trial to ensure that the prosecution met the required standard of proof and that the magistrate correctly applied the law in assessing the evidence.

Orders