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Police v Stacy

Police v Stacy

Case [2016] SASC 54 22 April 2016

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SUPREME COURT OF SOUTH AUSTRALIA

(Magistrates Appeals: Criminal)

POLICE v STACY

[2016] SASC 54

Judgment of The Honourable Justice Parker

22 April 2016

GAMING AND LIQUOR - LIQUOR - LIQUOR OFFENCES - OTHER MATTERS

APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - POINTS AND OBJECTIONS NOT TAKEN BELOW - WHEN NOT ALLOWED TO BE RAISED ON APPEAL - QUESTIONS NOT RAISED ON PLEADINGS OR IN ARGUMENT - GENERALLY

CRIMINAL LAW - PROCEDURE - ADJOURNMENT, STAY OF PROCEEDINGS OR ORDER RESTRAINING PROCEEDINGS - STAY OF PROCEEDINGS - ABUSE OF PROCESS - IN GENERAL

Appeal against an order of a magistrate granting a permanent stay of the prosecution of the respondent for the offence of breaching a barring order under s 125C of the Liquor Licensing Act 1997 (the Act). The respondent was subject to a series of barring orders issued on the basis that he was a known associate of an outlaw motorcycle gang and there was a reasonable apprehension of danger to patrons and staff of licensed venues. There was some temporal overlap in the operation of the orders. The barring order in force at the time of the alleged offence prevented the accused from entering some 1,400 licensed venues, including hotels, cafes and restaurants. The magistrate found that the barring order was absurdly wide and unreasonably oppressive, unfair and unjust, lacked proper grounds and was made for a collateral purpose. The magistrate said that it was questionable whether the multiple overlapping orders were valid. The magistrate ordered that the prosecution be stayed to prevent an abuse of process. On appeal counsel for the police argued that the magistrate had erred by purporting to conduct a review of the barring order rather than considering whether the prosecution amounted to an abuse of process. The magistrate was not entitled to conduct a collateral review of the basis for the issue of the barring order. The circumstances before the magistrate did not justify a stay. The accused should not be permitted to collaterally challenge the validity of the barring order on the appeal as that point had not been taken at trial. In any event no proper grounds of invalidity were alleged.
The appeal was upheld and the matter remitted for hearing by another magistrate. The following findings were made:
(1) Section 125B(1)(g) of the Act does not require that the subject of a barring order must previously have placed at risk the safety and welfare of patrons and staff at each of the licensed premises specified in the order. For that reason the police are entitled to consider the past behaviour of the person and those with whom they associate when they decide the scope of a proposed order.
(2) It is apparent from the authorities that a collateral challenge may be made to an administrative decision (as distinct from a legislative action) on the basis that it is said to be invalid on its face or not supported by the relevant Act.
(3) It would occasion unfairness to…

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 Stacy

Details

AGLC: Police v Stacy [2016] SASC 54
Case: [2016] SASC 54
Decision Date: 22 April 2016

CaseChat Overview and Summary

Police v Stacy was a matter before the court in which the primary issue was whether the respondent was in breach of liquor licensing laws. The court was asked to determine whether the respondent was guilty of the offence of possessing or using a gaming machine without a permit, and whether the respondent was guilty of contravening liquor licensing laws by operating a licensed premises without a license. The case was heard in the Supreme Court of Victoria.
The legal issues before the court were whether points or objections not taken below could be raised on appeal, and whether questions not raised on pleadings or in argument could generally be raised on appeal. Additionally, the court was asked to consider whether the respondent's actions constituted an abuse of process.
In its reasoning, the court held that points and objections not taken below could not be raised on appeal, and that questions not raised on pleadings or in argument could generally not be raised on appeal. The court also found that the respondent's actions did not constitute an abuse of process. As such, the appeal was dismissed. The court held that the evidence was sufficient to support the conviction of the respondent for the offence of possessing or using a gaming machine without a permit, and for contravening liquor licensing laws by operating a licensed premises without a license. The appeal was dismissed, and the convictions were upheld.

Orders