Police v Franco - [2008] SASC 268

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
POLICE v FRANCO
[2008] SASC 268
Judgment of The Honourable Justice Bleby
8 October 2008
MAGISTRATES - APPEALS AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
MAGISTRATES - JURISDICTION AND PROCEDURE GENERALLY - PROCEDURE - ORDERS AND CONVICTIONS - SETTING ASIDE AND AMENDMENT
Appeal from decision of Magistrate to rehear matter and impose orders in lieu - relevant information not provided to first Magistrate - whether it was in the interests of justice for Magistrate to rehear matter pursuant to Summary Procedure Act 1921 s 76A - whether exceptional or special circumstances required - consideration of circumstances in which s 76A may properly be invoked - appeal dismissed.
Firearms Act 1977 s 34, s 34A, s 35; Firearms Regulations 1993 reg 29(1), reg 53; Summary Procedure Act 1921 s 76A, s 76B; Justices Act 1921 s 163, s 76a, referred to.
Maider v Dancis (1985) 39 SASR 136; Muscat v Magistrates Court (1996) 66 SASR 367, discussed.

WORDS AND PHRASES CONSIDERED/DEFINED
"Interests of justice"

POLICE v FRANCO
[2008] SASC 268
Magistrates Appeal
BLEBY J.
Introduction

On 25 March 2008 the respondent, Mr Franco, appeared before a Magistrate (“the first Magistrate”) charged with various offences against the Firearms Act 1977 (SA). The essence of all the offences was that he failed to secure four firearms contrary to regulations 29(1) and 53 of the Firearms Regulations 1993 (count 2), and that he failed to secure ammunition separate from the firearms, contrary to regulations 32(1) and 53 (count 4).
On the day of his first appearance, Mr Franco pleaded guilty to the charges, and the Magistrate imposed a fine of $150. He then ordered that the four firearms and the ammunition be forfeited to the Crown.
Mr Franco subsequently applied for a rehearing of the matter before another Magistrate (“the second Magistrate”) pursuant to s 76A of the Summary Procedure Act 1921 (SA). The application was undated, but no point was taken as to the time of filing of the application. On 16 April 2008 and 7 May 2008 the second Magistrate heard submissions on the issue of whether the Court had power to rehear the matter. On 7 May 2008 the second Magistrate delivered a ruling that the matter could be reheard. A rehearing took place, and on 26 June 2008 the second Magistrate set aside the order of the first Magistrate for forfeiture of the four firearms and ammunition. The second Magistrate, instead, imposed an order that the ammunition be forfeited to the Crown, and that it was to be a condition of Mr Franco’s firearms licence that he not possess ammunition. The order of the first Magistrate imposing a fine was not disturbed.
The Police now appeal against the second Magistrate’s orders alleging that the second Magistrate erred in conducting a rehearing; that the second Magistrate had no power to set aside discretionary orders of the first Magistrate, and that the interests of justice did not require interference…

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 Police v Franco

Details

AGLC: Police v Franco [2008] SASC 268
Case: [2008] SASC 268
Decision Date: 8 October 2008

CaseChat Overview and Summary

The Police have appealed the decision of a second Magistrate to rehear a matter and impose orders in lieu of the first Magistrate’s orders. The appeal was against the second Magistrate’s orders, alleging that the second Magistrate erred in conducting a rehearing, had no power to set aside the discretionary orders of the first Magistrate, and that the interests of justice did not require interference with the original orders of the first Magistrate. The central issue before the court was whether the second Magistrate had the power under s 76A of the Summary Procedure Act 1921 to rehear the matter and impose orders in lieu of the first Magistrate’s orders, and if so, whether it was in the interests of justice for the Magistrate to do so.

The court considered the circumstances in which s 76A may properly be invoked. It noted that the relevant information, including the prosecutor’s application for an order of forfeiture and the relevant sections of the Firearms Act, was not provided to the first Magistrate. The court found that the second Magistrate was correct in determining that the interests of justice required a rehearing, as the first Magistrate had not been made aware of the relevant information at the time of the original hearing. The court concluded that the second Magistrate did have the power to set aside the discretionary orders of the first Magistrate and impose orders in lieu, and that it was in the interests of justice for the Magistrate to do so in this case. The appeal was dismissed.

The court’s decision highlights the importance of ensuring that all relevant information is provided to the court at the time of the hearing, and that the interests of justice are paramount in determining whether to rehear a matter and impose orders in lieu. The decision also clarifies the scope of s 76A of the Summary Procedure Act 1921, and the power of a Magistrate to set aside discretionary orders and impose orders in lieu.

Orders

Orders of the court

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Background

Background to the litigation

The Police now appeal against the second Magistrate’s orders alleging that the second Magistrate erred in conducting a rehearing; that the second Magistrate had no power to set aside discretionary orders of the first Magistrate, and that the interests of justice did not require interference with the original orders of the first Magistrate.The Facts Before referring to the relevant legislative provisions, it is necessary to refer in more detail to the facts that were before each of the Magistrates. Mr Franco is an aged pensioner. He has a very poor command of the English language. He was only able to give instructions to his solicitor through his daughter, who acted as an interpreter. When he appeared before the first Magistrate he was not legally represented and his daughter was not present. Another male person acted as interpreter. Through the interpreter, the first Magistrate asked Mr Franco how he intended to deal with the matter. He replied that he wished to enter a plea of guilty in relation to each of the charges. Through the interpreter, the Magistrate then informed Mr Franco of the applicable penalties and asked him whether he still wished to enter a plea of guilty. Mr Franco confirmed that he wished to do so. The charges were then formally read and translated by the interpreter. Mr Franco entered a plea of guilty in relation to each charge. The prosecutor informed the first Magistrate that on 26 October 2007 police from the Firearms Investigations Section were conducting a random security check and audit of firearms. They called at Mr Franco’s home. They asked to see his firearms and were shown to a wooden wardrobe in a bedroom. There were two firearms standing upright on the floor of the wardrobe, not secured in any way. Mr Franco also produced two other firearms standing upright against a wall behind a door, also unsecured. On the floor of the wardrobe was a quantity of 12-guage ammunition. This was not locked in any container. Mr Franco produced his firearms licence and participated in a recorded audio tape interview in the presence of his daughter, who acted as interpreter. Police seized the firearms and ammunition. Mr Franco told the police that he was not aware of the regulations in relation to the security of the firearms. He thought that his firearms were safe, as he was the only one who knew where they were. He was unaware that it was an offence to have unsecured firearms. He was also unaware of the regulations in relation to the storage of ammunition, and was unaware that it was an offence to keep that unsecured. The prosecutor informed the first Magistrate that Mr Franco had no prior convictions. According to his affidavit filed in these proceedings, the prosecutor made an application pursuant to s 34 of the Firearms Act for an order of forfeiture of the firearms and ammunition, referring particularly to s 34(2)(d) of the Act. If that is what in fact occurred, it was a misleading submission, as s 34 of the Act only applies to proceedings where the Registrar of Firearms has instituted proceedings for forfeiture of firearms or ammunition which have been seized. The only relevant forfeiture power available to the Magistrate upon conviction of Mr Franco was that contained in s 34A(1) of the Firearms Act. However, that probably does not matter. The significant fact is that the prosecutor made an application for an order of forfeiture.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

BLEBY J

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Ratio Decidendi

Legal Principle Established

Established by: BLEBY J

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