Phillips v Wilkie - [2022] TASSC 33

[2022] TASSC 33

COURT: SUPREME COURT OF TASMANIA

CITATION: Phillips v Wilkie [2022] TASSC 33

PARTIES:  PHILLIPS, Jake Raymond
  v
  WILKIE, Senior Constable Scott

FILE NO: 2055/2021

DELIVERED ON: 30 May 2022

DELIVERED AT:  Hobart
HEARING DATE:  15 February 2022
JUDGMENT OF:  Brett J
CATCHWORDS:

Magistrates – Appeal and Review – Tasmania – Motion to Review – Other Matters – Magistrate appeared to dismiss entire complaint after tender of no evidence on one charge but prior pleas of guilty on remainder – Application to set aside dismissal made by a different complainant – Lack of jurisdiction to set aside – Held that dismissal applied only to single charge and pleas of guilty to others still effective.
Acts Interpretation Act 1931, s 10A(1)(a).
Justices Rules 2003, r 38.
Justices Rules 1976.
Magistrates Court Act1987.
Aust Dig Magistrates [1349]
Magistrates – Appeal and Review – Tasmania – Motion to Review – When remedy available – Whether complainant was "a person aggrieved" by an order to dismiss complaint where dismissal had been set aside by another magistrate – Second magistrate lacked jurisdiction to set aside dismissal – Held the complainant had standing to seek review of dismissal order.
Justices Act 1959, s 107.
Dare v Sciberras [1994] TASSC 155, considered.
Aust Dig Magistrates [1345]

REPRESENTATION:

Counsel:
             Appellant:  M Flanagan
             Respondent:  V Dawkins
Solicitors:
             Appellant:  Murdoch Clarke
             Respondent:  Director of Public Prosecutions

Judgment Number: [2022] TASSC 33
Number of paragraphs: 24

Serial No 33/2022
File No 2055/2021

JAKE RAYMOND PHILLIPS v SENIOR CONSTABLE SCOTT WILKIE

REASONS FOR JUDGMENT BRETT J

30 May 2022

The competing applications for review which are before me, and the relatively complex legal arguments which accompany them, arise from what was, at the most, a slip of the tongue by a busy magistrate who was dealing with another magistrate's list, in circumstances in which the latter was unavailable. The applicant had been charged on complaint with five offences arising from a single act of driving. The driving had allegedly occurred on 21 February 2020 and the charges were as follows:
· Count 1 – Evading police contrary to s 11A(1) of the Police Powers (Vehicle Interception) Act 2000
·     Count 2 – Driving a motor vehicle whilst a prescribed illicit drug is present in oral fluid contrary to s 6A(1) of the Road Safety (Alcohol and Drugs) Acts 1970
·     Count 3 – Driving the motor vehicle whilst not being the holder of a driver licence
·     Count 4 – Using the motor vehicle when it was not registered under the Vehicle and Traffic Act 1999
·     Count 5 – Using the motor vehicle when its use was not afforded cover by the payment of a premium contrary to Motor Accidents (Liabilities and Compensation) Act 1973
The complaint was made on 27 March 2020 by Senior Constable Scott Wilkie. According to the court record, on 1 September 2020, the applicant appeared before Magistrate Hartnett without legal representation, and pleaded guilty to counts 2-5. A plea of not guilty was recorded in respect of count 1. Her Honour then adjourned the complaint to 28 September 2020. On that day, the defendant did not appear and the magistrate issued a warrant for his arrest. The next entry on the record is shown as 19 January 2020, but I infer that this must be 19 January 2021. The applicant appeared unrepresented before Magistrate Marron and a hearing date was fixed for 5 May 2021. The anticipated hearing could only have related to count 1, although the sentencing proceedings in respect of the remaining counts were also pending.
On 5 May, the defendant appeared with counsel before Magistrate Dixon. Magistrate Marron's list had been transferred to Magistrate Dixon because of the former's unavailability. According to the record of proceedings sheet, the prosecution tendered no evidence in respect of count 1, and the magistrate then dismissed the entire complaint.
The parties have thereafter proceeded on the basis that this record correctly describes the decisions taken by Magistrate Dixon on that day, in particular that he made an order dismissing the entire complaint, including the charges to which the applicant had pleaded guilty. On 30 July 2021, Senior Constable Olivia Ortuso filed an application in the Magistrates Court asking that "the tendering of no evidence on complaint 2990/20 be set aside under s 38 of the Justices Rules 1976". The grounds of the application included an assertion that:
"On 5 May 2021, Senior Constable Goodwin tendered no evidence to count 1 on the 2290/20 [sic]. Magistrate Peter Dixon has then dismissed the entire complaint. The pleas of guilty to counts 2–5 were not set aside".
On 2 August 2021, Senior Constable Ortuso filed a further application in the same terms but with the addition of a paragraph asking the court to correct "the error" pursuant to s 94 of the Sentencing Act 1997.
These applications came before Magistrate Marron on 4 August 2021. His Honour listened to a recording of the proceedings before Magistrate Dixon, and received submissions from the parties. At the conclusion of the hearing he said this:
"HIS HONOUR: Okay. Thank you. I think the difficulty was – is that Mr Dixon was handling a matter that I was seized of. And because I've actually got notes and I believe I had set down 222190 [sic] for a hearing on the 5^th of May. So that was always – the issue was count 1, and then, when that hearing disappeared, it may well have been that Mr Dixon intended for me to deal with the remaining bits because I was still seized of it. Although, I note, while I was away, he was – we – he consulted me in relation to a number of matters as to whether he could deal with them or I could deal with them or – and I just – I went through these, and I don't see my initials here anywhere where I've sort of said – authorised for him to – you know, that was what we were doing.
I was writing on the court file, 'Authorised,' and I hadn't done that, so he's clearly I think, left that for me possibly to deal with. Potentially to deal with. Ms Griffin, I read the submissions in relation to the matter and I think the decision in relation of the – of Blow J, as he then was, was dealing with – if I take – at par9 was the one you flagged, I think. You flagged par8, I think, was that in that case that there's – I think as a general rule where a Magistrate acquits a defendant as a result of the prosecutor informing the Magistrate that no evidence will be tendered, then that defendant is, in subsequent criminal proceedings, entitled to the full benefit of the acquittal, and that, therefore, no evidence may be adduced in that criminal proceedings, et cetera.
But I think it's quite clear from Ms Goodwin's initial submission was that the issue in relation to 2290 [sic] was in relation to count 1, and, just listening to what Mr Dixon had to say in relation to that, he substituted the word, 'Complaint,' for 'Charge,' and I don't believe that there was ever an indication by the prosecution to – no evidence in relation to the remaining counts, and that the error is, in fact, the Magistrate's interpretation. It's regrettable that it wasn't corrected when – on two occasions. On the first – on the first appearance, he repeated it, saying it was dismissed, and nothing was said. Then, on the return occasion, again, it wasn't picked up. That's regrettable, but not a basis for me to refuse the application, so I'll allow the application. Is your client here?"
His Honour then adjourned the complaint to another date. It would seem from his Honour's comments and the record of proceedings sheet that his intention was to proceed to sentence on counts 2-5, but that he regarded the dismissal of count 1 as effective.
The applicant's notice to review was filed on 13 October 2021. It seeks to review "the orders of R Marron Magistrate made on 4 August 2021 … whereby … the tendering of no evidence and dismissal of counts 2–5 on complaint 2990/20 be set aside pursuant to r 38 of the Justices Rules 2003 or the Justices Rules 1976 or s 94 of the Sentencing Act". The grounds of review assert that the magistrate lacked jurisdiction, erred in law and failed to give adequate reasons for setting aside the order of dismissal.
The review names Senior Constable Wilkie as the respondent, despite the order being made on an application brought by another police officer. However, this would seem to be appropriate because the order under review reinstated charges contained in the complaint made by Senior Constable Wilkie. To avoid confusion, I will hereafter refer to Senior Constable Wilkie as the respondent. He resists the review. However, he has now also filed a separate review in respect of the apparent dismissal of counts 2–5 by Magistrate Dixon. This review was not filed until the 15 February 2022. Because it is well out of time, the respondent has filed an application seeking an extension of time. The extension of time is opposed by the applicant, and the applicant also argues that the review is incompetent because the respondent was not a person aggrieved by the dismissal when the review was filed and hence lacks standing in respect of it.
Both parties proceeded before me on the basis that Magistrate Dixon did, in fact, dismiss the entire complaint, and that Magistrate Marron acceded to Senior Constable Ortuso's application to set aside this dismissal. As I will explain, I do not think that either conclusion is justified. However, in respect of the latter, it would seem to be common ground that the magistrate could not, in any event, have acted under s 94 of the Sentencing Act. The application of that section would depend upon the apparent dismissal of the complaint, in fact, constituting a sentence within the meaning of the said Act. True it is that a sentence can include an order under s 7(h), dismissing a charge for an offence, but it is patently clear that Magistrate Dixon was not imposing sentence for these charges, and neither was Magistrate Marron purporting to correct any such sentence. Section 94 can be regarded as irrelevant for the purpose of these proceedings.
The arguments presented to me assume that Magistrate Marron purported to exercise power under r 38 of the Justices Rules. To the extent relevant, that rule provides as follows:
"Re-opening of hearing in defendant's absence
(1) On an application under subrule (2) , any 2 justices jointly may set aside any one or more of the following:
(a) the dismissal of a complaint;
…
(2) An application to have a dismissal, conviction or order set aside by justices under subrule (1) must be –
(a) made in writing by the person –
(i) whose complaint was dismissed; or
…".
The applicant presented a number of arguments concerning the magistrate's power to set aside the dismissal of the complaint under this provision. It is only necessary for me to consider one such argument. The applicant submits that it is a fundamental and mandatory precondition of jurisdiction under this rule that the application is made by the person "whose complaint was dismissed". There is no dispute that this person was S/C Wilkie. The use of the word "must" in r 38(2) puts the mandatory nature of this requirement beyond doubt. See s 10A(1)(a) of the Acts Interpretation Act 1931. Accordingly, I agree with Mr Flanagan that it is an express and mandatory requirement of this rule that the application be made by the complainant. It was not and, accordingly, his Honour was not entitled to proceed under the rule. The applicant's arguments also include the contention that the rule is ultra vires the rule making power contained in the Magistrates Court Act 1987. However, in view of the lack of jurisdiction arising from the fact that the application was brought by a person not entitled to do so, it is not necessary to consider the other arguments.
Notwithstanding the validity of this argument, there is a fundamental flaw in the basis upon which the parties have proceeded in this case. When regard is had to what actually took place before Magistrate Dixon on 5 May, considered in the context of the proceedings as a whole, the inescapable conclusion is that the magistrate intended to, and did in fact, dismiss only count 1, the charge of evade police, and that the record of proceedings entry is inaccurate. The magistrate's list on the relevant day contained a number of complaints against the applicant, including the one relevant to these proceedings. It is obvious that he was expecting a hearing in relation to count 1. The magistrate was expressly told that he was dealing with facts and sentence in respect of various matters relating to the applicant. His Honour then said "There is one for hearing isn't there". This is consistent with his knowledge as to the status of the other charges on the complaint, which is that the applicant had already entered pleas of guilty. At that point, the prosecutor indicated that he would tender no evidence on count 1. He expressly identified that count. His Honour acknowledged that advice, and said "That complaint's dismissed". He must have said this without examining the complaint, because he then indicated that he would look at the complaint and then confirmed that the relevant charge "is evade police". He again said that the complaint was dismissed and asked "What have we got left". He was told that everything else "has pleas of guilty" and was for sentence. There was then further discussion as to the course of proceedings to that point, including whether the matter was adjourned for sentence and facts had been read.
The record of proceeding sheet confirms that the complaint was again listed before Magistrate Dixon on 27 May 2021. There is no record of an order in respect of that adjournment, but I infer that all other matters before his Honour had been adjourned to that date. The recording of the proceedings on 27 May have also been transcribed. There is discussion on that day in relation to counts 2–5. This includes a submission by the applicant's counsel, which makes clear that his expectation is that the facts of those charges will need to be read. His Honour makes a somewhat cryptic comment that "it is one for next time".
The inescapable inference which arises from this record is that Magistrate Dixon, in the hearing on 5 May 2021, only intended to dismiss count 1, and was well aware that pleas of guilty had been entered to the remaining charges, and was not intending to dismiss those charges. In any event, it is clear that Magistrate Dixon had no capacity to dismiss those charges. They were not before him for that purpose. The applicant had entered pleas of guilty at an earlier time. A plea of guilty is a solemn admission of guilt in respect of the relevant charge. At least one of the charges carried a mandatory minimum penalty. His Honour was an extremely experienced magistrate and could have been in no doubt about any of this. The fact that counts 2–5 were adjourned to a later date confirms that those charges were not included in his Honour's dismissal order.
The upshot of this analysis is that although administratively it has been assumed that the magistrate has dismissed all charges, I am not satisfied that this has actually taken place as a judicial act. It is obvious that the magistrate has used loose wording when responding to the tender of no evidence on count 1. His reference to "complaint" rather than "count" or "charge" is a slip of the tongue. I conclude that charges 2–5 have not been dismissed.
This analysis is consistent with the observations made by Magistrate Marron when the application came before him. His Honour took the view, as I do, that the magistrate dismissed count 1, but that any reference to dismissal of the complaint was intended to refer only to that charge. He has acceded to the application without further analysis. It is apparent that Magistrate Marron has simply allowed the application because of his view that there has never been a conscious act by Magistrate Dixon to dismiss the charges. Although his Honour may not have been entitled to act pursuant to r 38, it seems to me that he was, in reality, simply acknowledging that the magistrate had not, in fact, dismissed those charges.
In any event, the pleas of guilty to those charges have not been withdrawn. The pleas are still in place as an admission of guilt, and the applicant is still liable for sentence in respect of the offences. It is irrelevant that the adjournment trail of the charges has become administratively confused, and the record incorrectly shows that the charges have been dismissed. It follows that the applicant's review is redundant. The magistrate had no jurisdiction to entertain an application under r 38, but he was not wrong to regard charges 2–5 as extant, and to indicate that he would deal with them in due course. The review should therefore be dismissed.
If I am wrong about this, and the whole complaint has, in fact, been dismissed, then that situation can and should be rectified by extending time for the filing of the review by the respondent, and upholding that review. If the magistrate has consciously dismissed counts 2 to 5, then there is no question that he was in error in doing so. The applicant does not argue otherwise. Mr Flanagan's arguments are limited to the question of standing, and that I should not extend time because it would be unfair to the applicant to do so.
There is no merit in either argument. The argument that the respondent does not have standing to bring the review is based on a submission that he is not a "person aggrieved" by the purported dismissal of counts 2–5 within the meaning of s 107 of the Justices Act. This submission relies on the comments of Zeeman J in Dare v Sciberras [1994] TASSC 155. That case concerned a review of a decision by a magistrate to refuse an application for an interim restraint order. The magistrate had incorrectly determined that he had no jurisdiction to make the order without being satisfied of certain matters referred to in the relevant legislation. Subsequently, another magistrate took a different view of the need for satisfaction of the said matters as a jurisdictional requirement, and made the order. The applicant then appealed the original magistrate's decision, notwithstanding that the point was now otiose because of the latter decision. It would seem that the motive was to obtain an authoritative decision on the point, and was being pursued as a test case. His Honour observed that standing is to be determined at the time that the review is filed, and that, at that point, the applicant was no longer aggrieved by the first magistrate's decision. Therefore, the applicant was without standing to bring the review.
Mr Flanagan submits that this case is "on all fours" with the case before me. He argues that because as at the date of filing the review, the respondent had the benefit of a favourable order from Magistrate Marron, that he therefore was then no longer aggrieved by the dismissal order. Because that is the critical time point to determine standing, he was then without standing, and the review is therefore incompetent. I reject this submission. If I am correct in my conclusion that Magistrate Dixon did not dismiss counts 2–5, and those charges are still on foot, then neither review has any basis, jurisdictional or otherwise, nor any merit. However, if I am not correct in that conclusion, then Magistrate Marron acted without jurisdiction and his purported setting aside of the dismissal is void ab initio, and the dismissal of the charges remains effective. It is self-evident that if this is the true legal position, then the respondent is, and has always been, aggrieved by Magistrates Dixon's decision. He would, in that event, be clearly entitled, under s 107, to ask this Court to review that order.
On the question of extension of time, Mr Flanagan asserts general prejudice to the applicant arising from the delay in filing the notice of review. Although he has presented no evidence to support a claim of specific prejudice, counsel submits that I can infer prejudice on the basis that the applicant must have believed that these charges were dismissed last year, and he is likely to have thereafter acted on the assumption that he is no longer subject to them.

If that is what the applicant has done and thought, then he was not justified in taking that view, and acting on it. He had pleaded guilty to these charges and his counsel, even as late as 27 May 2021, still believed that the applicant was liable to sentence for them. There is no evidence as to when the applicant formed a different view, if he ever did. In any event, it must have also been obvious to the applicant that Magistrate Marron had purported to place the pleas of guilty back on foot on 4 August 2021. He was clearly not entitled to anticipate the success of his review against that decision.
The justice of the case requires that the applicant's pleas of guilty to counts 2–5 on the complaint be dealt with by the Magistrates Court. In my view, they remain effective, and the applicant is presently liable to sentence in respect of those offences. However, out of an abundance of caution, I will allow the respondent's application for an extension of time and uphold the review against Magistrate Dixon's apparent dismissal of the relevant charges. I order that counts 2–5 on complaint 2990/20 be remitted to a magistrate for sentence. I perceive no difficulty with either Magistrate Marron or Dixon dealing with the sentence, but it will be a matter for the Chief Magistrate to allocate the case to a magistrate for that purpose.