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Phillips v Arnold

Phillips v Arnold

Case [2008] TASSC 6 18 February 2008

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[2008] TASSC 6

CITATION: Phillips v Arnold [2008] TASSC 6

PARTIES:  PHILLIPS, David William
  v
  ARNOLD, Ashley William Roy

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  APPELLATE
FILE NO/S:  782/2007
DELIVERED ON:  18 February 2008
DELIVERED AT:  Burnie
HEARING DATE:  12 February 2008
JUDGMENT OF:  Evans J

CATCHWORDS:

Magistrates – Appeals from and control over magistrates – Tasmania – Motion to review – When remedy available – Unsafe and unsatisfactory ground – Need to establish error of fact or law or both.

Kelly v O'Sullivan (1994 - 1995) 4 Tas R 446; Australian Securities and Investment Commission v Hosken (No 2) [2000] TASSC 12; Hajdu v Brown [2007] HCATrans 245, referred to.
Aust Dig Magistrates [270]

REPRESENTATION:

Counsel:
             Appellant:  G A Richardson
             Respondent:  J Williams
Solicitors:
             Appellant:  G A Richardson
             Respondent:  Director of Public Prosecutions

Judgment Number: [2008] TASSC 6
Number of paragraphs: 23

Serial No 6/2008

File No 782/2007

DAVID WILLIAM PHILLIPS v ASHLEY WILLIAM ROY ARNOLD

REASONS FOR JUDGMENT EVANS J

18 February 2008

The applicant has filed a notice to review his conviction for driving a motor vehicle while exceeding a prescribed alcohol limit contrary to the Road Safety (Alcohol and Drugs) Act 1970, s6(1). The conviction relates to an incident that occurred on 5 December 2003 in Stewart Street, Devonport. The hearing that resulted in the conviction took place on 30 October 2007.

The grounds of review as particularised are that:

(i)there was insufficient evidence to satisfy the learned magistrate that the defendant had driven a vehicle; and
(ii)the learned magistrate gave no reasons for preferring the evidence of Constable Rigby to the evidence of the applicant.

The applicant does not dispute that at the time of the incident his vehicle, a utility, was in a public street, and that his blood alcohol reading was 0.174 grams of alcohol in 100 millilitres of blood. However, he contends that he had not driven his vehicle. The driving of his vehicle was the only element of the offence put in issue by the applicant.

The evidence called by the prosecution was given by Constable Sarah Mansfield and Constable Gavin Rigby. Constable Mansfield's evidence was to the following effect. Prior to the interception of the applicant's vehicle, she and Constable Rigby had received information that a vehicle parked in Stewart Street was about to be driven by a drunk driver. They drove to Stewart Street where she saw a utility which matched the description of the vehicle they were looking for parked on the northern side of Stewart Street, opposite the Westpac Bank, facing in an easterly direction. They parked the police vehicle in Stewart Street, facing in an easterly direction, outside the Workers Club and watched the utility. When she first saw the utility, its lights were not on. She saw the taillights and headlights of the utility go on and observed it do a U-turn. She and Constable Rigby drove to and intercepted the utility, which stopped outside the Westpac Bank facing west. She…

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 Phillips v Arnold

Details

AGLC: Phillips v Arnold [2008] TASSC 6
Case: [2008] TASSC 6
Decision Date: 18 February 2008

CaseChat Overview and Summary

The case of Phillips v Arnold was brought before the court as an appeal against a decision made by a magistrate in Tasmania. The nature of the dispute revolves around the validity of a motion to review the magistrate's decision. The crux of the matter lies in whether the court has the authority to grant a remedy when the grounds for the review are deemed to be unsafe and unsatisfactory. The appellant, Phillips, argued that the magistrate's decision contained errors of fact, law, or both, which warranted a review. The respondent, Arnold, contended that the grounds for review were insufficient to warrant such a remedy.

The legal issues the court was required to decide centred on the circumstances under which a remedy may be granted through a review of a magistrate's decision. Specifically, the court had to determine the threshold for establishing unsafe and unsatisfactory grounds for review and whether the appellant had successfully demonstrated an error of fact or law, or both, that necessitated a review. The court also needed to assess the adequacy of the grounds for review provided by the appellant in relation to the decision of the magistrate.

The court found that for a remedy to be granted through a review of a magistrate's decision, the grounds for review must be both unsafe and unsatisfactory. It was held that the appellant had to establish an error of fact, law, or both, that warranted the review. The court examined the grounds for review presented by the appellant and concluded that they did not meet the required threshold. The appellant failed to demonstrate that the magistrate's decision was based on an error of fact or law, or both, that rendered the decision unsafe and unsatisfactory. Therefore, the court dismissed the appeal and upheld the original decision of the magistrate.

The final orders of the court were that the appeal be dismissed and that the original decision of the magistrate be upheld. The court ruled that the grounds for review provided by the appellant were insufficient to warrant a remedy through a review of the magistrate's decision. The appellant was not successful in establishing an error of fact, law, or both, that necessitated a review. The decision of the magistrate was therefore affirmed, and the appellant's appeal was dismissed.

Orders