Pettet v Van der Merwe - [2014] QDC 163

DISTRICT COURT OF QUEENSLAND

CITATION:	Pettet v Van der Merwe [2014] QDC 163
PARTIES:	IAN EDWARD PETTET (appellant) v WALTER JAMES VAN DER MERWE (respondent)
FILE NO/S:	54/14
DIVISION:	Appellate
PROCEEDING:	Appeal
ORIGINATING COURT:	Magistrates Court at Caloundra
DELIVERED ON:	24 July 2014 ex tempore
DELIVERED AT:	Maroochydore
HEARING DATE:	24 July 2014
JUDGE:	Robertson DCJ
ORDER:	1. Appeals dismissed 2. Order that the appellant pay the respondent’s costs of the appeal, fixed at $22,315.22
CATCHWORDS:	LOCAL GOVERNMENT - ELECTIONS - OFFENCES - where the appellant was convicted and sentenced before the learned Magistrate for two offences of failure to vote - where the appellant applied to the High Court of Australia for removal of the appellant’s proceedings before the learned Magistrate and the learned appeal Judge as the appellant’s proceedings concerned a Commonwealth matter APPEAL AND NEW TRIAL - CRIMINAL LAW - ERROR OF LAW - where the appellant appeals on a number of grounds against the convictions, sentences and cost orders imposed by the learned Magistrate - where the appellant left the courtroom during the proceedings before the learned Magistrate - whether the proceedings were conducted according to law by the learned Magistrate in the absence of the appellant - whether any abuse of process or errors of law occurred in the proceedings before the learned Magistrate - whether any grounds of appeal are made out by the appellant Legislation Acts Interpretation Act 1954 s24AA Australian Constitution s 44 Electoral Act 1992 (Qld) s 134, s 186(1)(a), s 186(4) Evidence Act 1977 (Qld) s 95 Judiciary Act 1903 (Cth) s 39(2), s 40, s40(1), s 78B, s 78B(1) Justices Act 1886 (Qld) s 52, s52(1), s 83A, s 142, s 142A, s 142A(4)(b)(iii), s 146(1)(a), s 147, s 222, s 223, s 223(1), s 225(3), part 6 Local Government Electoral Act 2001 (Qld) s 168(1) State Penalties Enforcement Act 1999 (Qld) s56, s 57(3), s 60(4)(c) Cases House v the King (1936) 55 CLR 499 Huddart, Parker & Co Pty Ltd v Moorehead (1909) 8 CLR 330 Isenglaas v Commissioner of Police [2014] QDC 6 Kosteska v Commissioner of Police [2011] QCA 266 Mbuzi v Hornby [2010] QCA 186 Sue v Hill (1998) 199 CLR 462
COUNSEL:	Mr IE Pettet for the appellant (self-represented) Ms DM Galbraith for the respondent
SOLICITORS:	Mr IE Pettet for the appellant (self-represented) Crown Law for the respondent

HIS HONOUR: This is an appeal pursuant to section 222 of the Justices Act 1886 against convictions, sentences, and costs orders imposed by her Honour Magistrate Tonkin in the Caloundra Magistrates Court on the 21^st of February 2014. The appellant, Ian Edward Pettet was before the Court on two offences of failure to vote.

Firstly, it was alleged that Mr Pettet had breached section 168(1) of the Local Government Electoral Act 2001. The complaint of the respondent made under oath by complaint filed on the 24^th of October 2013 was to the effect that “between the 16^th of April 2012 and…

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 Pettet v Van der Merwe

Details

AGLC: Pettet v Van der Merwe [2014] QDC 163
Case: [2014] QDC 163
Decision Date: 24 July 2014 ex tempore

CaseChat Overview and Summary

Pettet appealed against his conviction and sentence for two offences of failure to vote, contending that the proceedings before the Magistrate and the appeal judge were not conducted according to law as he was absent from the courtroom. He further appealed on various grounds, including the absence of his legal representative and alleged errors in the conduct of the trial. The High Court of Australia was asked to determine whether the appeal should be heard, given that the matter involved a Commonwealth issue, and to consider whether there were any legal errors warranting an appeal.

The primary legal issues involved the validity of the proceedings and whether any errors or abuse of process occurred in the absence of the appellant. The court needed to decide if the trial was conducted lawfully without the appellant present and if there were any grounds for appeal, including the absence of the appellant's legal representative and the alleged procedural errors. The court also had to consider whether the appeal should proceed under the Commonwealth's jurisdiction.

The court found that the appellant's absence from the courtroom did not render the proceedings unlawful, as the appellant had not established any procedural irregularity or prejudice. The court concluded that the trial was conducted according to law and there was no abuse of process. The court also found that none of the grounds of appeal were substantiated, as the appellant had failed to demonstrate any error of law. The appeals were dismissed, and the appellant was ordered to pay the respondent's costs of the appeal, fixed at $22,315.22.

Orders

Orders of the court

1. Appeals dismissed

2. Order that the appellant pay the respondent’s costs of the appeal, fixed at $22,315.22

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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