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Peden v Boxx

Peden v Boxx

Case [2016] ACTSC 86 10 May 2016

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SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	Peden v Boxx
Citation:	[2016] ACTSC 86
Hearing Dates:	26 August 2015; 28 August 2015
DecisionDate:	10 May 2016
Before:	Burns J
Decision:	See [27].
Catchwords:	ELECTORAL ACT – Offences Under the Electoral Act 1992 (ACT) – not making a claim for enrolment after becoming entitled – appeal from the Magistrates Court – whether the appellant was found guilty of an offence not known to law – omission of the words “without reasonable excuse” on the charge – whether this results in the charge being defective – appeal upheld – charge dismissed as not alleging any offence known to law.
Legislation Cited:	Aboriginals Ordinance 1918-1947 (NT) Companies (New South Wales) Code (NSW) s 375 Crimes Act 1914 (Cth) ss 76B, 15D Crimes (Sentencing) Act 2005 (ACT) s 17 Criminal Code 2002 (ACT) ss 56, 58 Electoral Act 1992 (ACT) s 73 Justices Act 1928 (Vic) s 214 Licensing Ordinance 1939-1952 (NT) Magistrates Court Act 1930 (ACT) Public Order (Protection of Persons and Property) Act 1971 (Cth) s 11 Road Transport (General) Act 1999 (ACT) s 72(1)
Cases Cited:	Barritt v Baker [1948] VLR 491 Dickson v Irwin (Unpublished, Full Court of the Supreme Court of the ACT, Murrell CJ, Refshauge and Wigney JJ, 4 November 2015) Dowling v Bowie (1952) 86 CLR 136 Ganke v Corporate Affairs Commission (1990) 19 NSWLR 449 Henshaw v Mark (1997) 140 FLR 438 Kirk v Industrial Relations Commission of New South Wales; Kirk Group Holdings v WorkCover Authority of New South Wales (2010) 239 CLR 531 Mark v Henshaw (1998) 85 FCR 555 Parkinson v Alexander [2016] ACTSCFC 1 Queen v Debono [2013] VSC 408 R v Sheehan [2001] 1 Qd R 198 Rook v Maynard (No. 2) (1994) 3 Tas R 235 Woolmington v Director of Public Prosecutions [1935] AC 462
Parties:	Aaron Glen Peden (Appellant) Caleb Boxx (Respondent)
Representation:	Counsel Mr S Whybrow (Appellant) Mr T Buckingham (Respondent)
Solicitors Ben Aulich & Associates (Appellant) ACT Director of Public Prosecutions (Respondent)
File Number:	SCA 30 of 2015
Decision under appeal:	Court: ACT Magistrates Court Before: Special Magistrate Hunter Date of Decision: 21 May 2015 Case Title: Boxx v Peden Court File Number: CC14/09142

BURNS J:

The appellant was charged by summons with one offence contrary to s 73(1) of the Electoral Act 1992 (ACT) (the Act) alleging that on 12 September 2014 he, being a person who was entitled to be enrolled for an electorate and was not enrolled on any roll, did not make a claim for enrolment within 21 days after he became so entitled. This is a summary offence, carrying a maximum penalty of one half of a penalty unit.

He entered a plea of not guilty to the charge and it proceeded to hearing in the Magistrates Court. On 17 March 2015, a magistrate found the offence proved, but dismissed the charge without recording a conviction pursuant to s 17 of the Crimes (Sentencing) Act 2005 (ACT). By…

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 Peden v Boxx

Details

AGLC: Peden v Boxx [2016] ACTSC 86
Case: [2016] ACTSC 86
Decision Date: 10 May 2016

CaseChat Overview and Summary

The case of Peden v Boxx involved the appellant, Peden, appealing against a conviction in the Magistrates Court for an offence under the Electoral Act 1992. The appellant was found guilty of failing to make a claim for enrolment after becoming entitled to do so, an offence under section 167 of the Electoral Act. The conviction was based on a charge that omitted the phrase "without reasonable excuse," which is required for the offence under the Act. The appellant argued that the omission rendered the charge defective and that the conviction should be quashed.

The primary legal issue before the court was whether the omission of the words "without reasonable excuse" from the charge resulted in the charge being defective and whether the appellant was found guilty of an offence not known to law. The court had to determine if this defect was fatal to the charge and whether the conviction could stand. The court also considered whether the omission was a mere technical defect that could be corrected or if it fundamentally affected the nature of the offence alleged.

The court found that the omission of the words "without reasonable excuse" was significant and rendered the charge defective. The court held that the charge did not allege an offence known to law because it failed to include an essential element of the offence under section 167 of the Electoral Act. Consequently, the conviction was quashed, and the appeal was upheld. The court concluded that the appellant could not be found guilty of an offence not known to law, and the charge was dismissed as not alleging any offence known to law.

The final orders of the court included the quashing of the conviction and the dismissal of the charge as not alleging any offence known to law. The appellant's appeal was upheld, and the case was remitted to the Magistrates Court for further proceedings in accordance with the law.

Orders

Orders of the court

See [27].

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

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Citations

Peden v Boxx [2016] ACTSC 86

Most Recent Citation

Peden v Boxx (No 2) [2016] ACTSC 110

Cases Citing This Decision

Ward v Richardson [2021] ACTSC 130
Citation 1 (Para 1)

…e standard of beyond reasonable doubt that he had no reasonable excuse: see Henshaw v Mark (1997) 95 A Crim R 115 ( Henshaw v Mark ) and Peden v Boxx [2016] ACTSC 86; 258 A Crim R 422 ( Peden v Boxx ). The appellant submitted that the evidence of the agreement between himself and MX regarding custody of K, evidenc…
Nchouki v The Queen [2018] ACTCA 28
Citation 2 (Para 1)

…The appellant also referred to Burns J’s decision in Peden v Boxx [2016] ACTSC 86 ( Peden v Boxx ) where Burns J considered whether a charge under s 73(1) of the Electoral Act 1992 (ACT) was defective. The section creating the offence provided that a person who was not enrolled to vote committed an offence if, wit…
Boxx v Peden [2017] ACTCA 39
Citation 3 (Para 1)

…The background facts are straightforward, and not in dispute. In Peden v Boxx [2016] ACTSC 86, the primary Judge quashed a finding of guilt entered by a Magistrate against the respondent Mr Peden for the offence of failing to vote contrary to s 73(1) of the Electoral Act 1992 (ACT). The prosecution against Mr Pede…
Callanan v Witness M [2017] QSC 2
Citation 4 (Para 16)

…], [58]. [39]See R v QX [2015] VSC 784 at [46], quoting R v Debono [2013] VSC 408 at [21]-[23], and at [54]; Peden v Boxx [2016] ACTSC 86 at [11]-[25].…
Peden v Boxx (No 2) [2016] ACTSC 110
Citation 5 (Para 1)

…t made by the Magistrate, and dismissed the charge against the appellant on the ground that it did not allege an offence known to law: Peden v Boxx [2016] ACTSC 86. At the same time I made an order that the respondent pay the appellant’s costs of the appeal and of the proceedings in the Magistrates Court, unless e…

See all citing cases →

Cases Cited

Parkinson v Alexander [2016] ACTSCFC 1
Citation 1 (Para 1)

…a single judge based upon the concession by the prosecution that the appeal in that matter was competent. In the second matter, Parkinson v Alexander [2016] ACTSCFC 1, the Full Court determined on 15 April 2016 that a “finding by the Magistrates Court that an offence has been proved (a finding of guilt) is a “convi…
R v Debono [2013] VSC 408
Citation 2 (Para 1)

…unds of liability, it will be a proviso and the onus will be on the prosecution to prove that the proviso does not apply”: The Queen v Debono [2013] VSC 408, per Kyrou J at [22]. Section 73(1) of the Act is not a provision that contains some form of exception or qualification as part of the definition of the grou…
Kirk v Industrial Court of New South Wales [2010] HCA 1
Citation 3 (Para 1)

…ferred me to the decision of Kirk v Industrial Relations Commission of New South Wales ; Kirk Group Holdings v WorkCover Authority of New South Wales (2010) 239 CLR 531 as authority for the proposition that it is incumbent on the prosecution to identify in an information all of the essential ingredients of the charge…
Chugg v Pacific Dunlop Ltd [1990] HCA 41
Citation 4 (Para 1)

…Some more recent cases provide assistance. In Ganke v Corporate Affairs Commission (1990) 19 NSWLR 449, the appellant Ganke was prosecuted for failing to submit a report to the liquidator of the affairs of a company, contrary to s 375 of the Companies (New South Wales) Code (NSW). Section 375(9) provided: “A person wh…
Purkess v Crittenden [1965] HCA 34
Citation 5

…at is an ultimate legal onus which the charged person bears; it is not an evidential onus such as discussed by the High Court in Purkess v Crittenden (1965) 114 CLR 164 at 167–168. (Emphasis added)…
Vines v Djordjevitch [1955] HCA 19
Citation 6

…by which criminal liability may be avoided (and so to be proved by the accused). The principles stated in the cases, such as Vines v Djordjevitch (1955) 91 CLR 512 at 519-520, are of assistance in determining the intended nature of such a provision: see also Ex parte Ferguson , Re Alexander (1944) 45 SR (NSW) 64 at…
Dowling v Bowie [1952] HCA 63
Citation 7 (Para 1)

…A similar approach was taken by the High Court in Dowling v Bowie (1952) 86 CLR 136 ( Dowling ), where it was held that the prosecution had an obligation to prove that the defendant sold liquor to a “half-caste” Aboriginal as defined by the Aboriginals Ordinance 1918-1947 (NT) for the purposes of the Licensing Ordin…
[1935] AC 462 [1935] AC 462
Citation 8 (Para 1)

…nus of establishing the absence of reasonable excuse in relation to the offence. After referring to Woolmington v Director of Public Prosecutions [1935] AC 462 to the effect that it is the duty of the prosecution to prove the guilt of the accused, Hunt J said, at 455:…

Legislation Cited

Crimes Act 1914 (Cth) 15D, 76B
3 mentions (from Para 1)
Crimes (Sentencing) Act 2005 (ACT) 17
2 mentions (from Para 1)
Electoral Act 1992 (ACT) 73
2 mentions (from Para 1)
Justices Act 1928 (NT) 214
2 mentions (from Para 1)
Public Order (Protection of Persons and Property) Act 1971 (Cth) 11
2 mentions (from Para 1)
Road Transport (General) Act 1999 (ACT) 72(1)
2 mentions
Aboriginals Ordinance 1918 (NT)
1 mention (from Para 1)
Licensing Ordinance 1939 (NT)
1 mention (from Para 1)
Magistrates Court Act 1930 (ACT)
1 mention (from Para 1)