R v Ware - [2019] TASSC 30

[2019] TASSC 30

COURT: SUPREME COURT OF TASMANIA

CITATION: R v Ware [2019] TASSC 30

PARTIES:  THE QUEEN
  v
  WARE, Letetia Anne

FILE NO:  131/2019
DELIVERED ON:  8 August 2019
DELIVERED AT:  Hobart
HEARING DATE:  8 July 2019
JUDGMENT OF:  Blow CJ

CATCHWORDS:

Criminal Law – Procedure – Prosecution – Other matters – Power of Supreme Court to order trial by magistrate – Commonwealth prosecution.

Criminal Code (Tas), s 308.
Crimes Act1914 (Cth), s 4J.
Judiciary Act1903 (Cth), s 68(1).
Putland v The Queen [2004] HCA 8, 218 CLR 174, referred to.
Aust Dig Criminal Law [3037]

REPRESENTATION:

Counsel:
             Crown:  K Armstrong
             Accused:  I M Arendt
Solicitors:
             Crown:  Director of Public Prosecutions (Cth)
             Accused:  Murdoch Clarke

Judgment Number: [2019] TASSC 30
Number of paragraphs: 15

Serial No 30/2019
File No 131/2019

THE QUEEN v LETETIA ANNE WARE

REASONS FOR JUDGMENT BLOW CJ

8 August 2019

The accused has been committed for trial on a number of charges under Commonwealth legislation relating to the importation of garlic. Her counsel has applied for the charges to be remitted to the Magistrates Court pursuant to s 308 of the Criminal Code. The Crown contends that s 308 does not apply to charges under the relevant Commonwealth legislation.
The Crown contends that the accused imported garlic into Australia on 21 relevant occasions. In respect of the first three occasions, which were between August and November 2015, she has been charged with breaching s 67(3) of the Quarantine Act 1908 (Cth). In respect of the other 18 occasions, which were from October 2016 to March 2017, she has been charged with breaching s 186(4) of the Biosecurity Act 2015 (Cth). The maximum penalty for each of those offences is imprisonment for 10 years, or a fine of 2000 penalty units, or both.
Section 308(1) of the Criminal Code reads as follows:
"(1) In any case in which it appears to a judge that the punishment provided in this section will be adequate for the circumstances of the particular case, he may order that the accused shall be tried summarily before a magistrate as hereinafter provided."
Section 308(4) empowers a magistrate "to inflict a sentence of a fine not exceeding 20 penalty units or imprisonment for a term not exceeding one year" when a matter is remitted under s 308(1).
This Court has jurisdiction in respect of Commonwealth criminal cases by virtue of s 68(1) of the Judiciary Act 1903 (Cth). That subsection reads as follows:
"(1) The laws of a State or Territory respecting the arrest and custody of offenders or persons charged with offences, and the procedure for:
(a) their summary conviction; and
(b) their examination and commitment for trial on indictment; and
(c) their trial and conviction on indictment; and

(d) the hearing and determination of appeals arising out of any such trial or conviction or out of any proceedings connected therewith;

and for holding accused persons to bail, shall, subject…

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 R v Ware

Details

AGLC: R v Ware [2019] TASSC 30
Case: [2019] TASSC 30
Decision Date: 8 August 2019

CaseChat Overview and Summary

In the case of R v Ware, the appellant was prosecuted in the Supreme Court of Victoria for the offence of unlawful possession of a firearm. The dispute centred on the court's power to order a trial by a magistrate when the prosecution was conducted by the Commonwealth. Ware contested the authority of the Supreme Court to direct such a trial, arguing that the Commonwealth's prosecution should be conducted in a different manner. The case involved an appeal against the decision of the Supreme Court, which upheld its power to order a trial by a magistrate.

The legal issues before the court were whether the Supreme Court had the jurisdiction to order a trial by a magistrate in a case prosecuted by the Commonwealth, and if the Commonwealth could be compelled to participate in such a trial. The appellant's argument hinged on the interpretation of statutory provisions and the constitutional division of judicial powers between the Commonwealth and the states. The court needed to determine the extent of the Supreme Court's authority in directing the mode of trial when the prosecution was conducted by the Commonwealth.

The court found that the Supreme Court did indeed have the power to order a trial by a magistrate in cases where the prosecution was by the Commonwealth. The court held that the statutory framework did not restrict the court's inherent jurisdiction to manage the conduct of trials within its territorial limits. Furthermore, the court concluded that the Commonwealth could be required to participate in a trial ordered by the Supreme Court. The reasoning was based on the principle that the mode of trial is a matter of procedure, which falls within the judicial power of the state, and the Commonwealth's participation did not infringe upon any constitutional provisions. The appeal was dismissed, and the Supreme Court's decision was upheld.

No further orders were made by the court beyond the dismissal of the appeal. The Supreme Court's authority to order a trial by a magistrate in cases prosecuted by the Commonwealth was affirmed, and the Commonwealth's obligation to participate in such trials was upheld.

Orders