Legal Research
Cases
Re Magistrate Black

Re Magistrate Black

Case [2010] WASC 222 20 August 2010

Judicial Review

Statutory Interpretation

Retrospective Effect

Administrative Law

Type to search within this case.

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: RE MAGISTRATE BLACK; EX PARTE SADLER [2010] WASC 222

CORAM: EM HEENAN J

HEARD: 12 MARCH, 26 JULY 2010

DELIVERED : 20 AUGUST 2010

FILE NO/S: CIV 1174 of 2010

MATTER :An application under the Magistrates Court Act 2004 s 36 for a review order against his Honour Magistrate Black of the Magistrates Court of Western Australia at Perth

EX PARTE
SHANE SADLER
Applicant
AND
MAGISTRATE ROBERT BLACK
First Respondent
ERIN CUMMINS
Second Respondent

Catchwords:

Review order - Dismissal by magistrate of application to correct a sentence - Road Traffic Act, s 60 - First or second offence - Statutory modification of the ingredients of the offence after the first conviction - Whether statutory modification has retrospective effect

Legislation:

Road Traffic Act 1974 (WA), s 60
Magistrates Court Act 2004 (WA), s 36
Sentencing Act 1995 (WA), s 37

Result:

Order to quash decision to dismiss application to correct sentence.
Remit to Magistrates Court application to correct sentencing for further hearing and determination on the basis that the offence by the second respondent is his second offence under s 60 of the Road Traffic Act 1974 (WA)

Category: A

Representation:

Counsel:

Applicant:     Ms C A Lake
First Respondent           :     No appearance
Second Respondent       :     No appearance

Solicitors:

Applicant:     State Solicitor's Office
First Respondent           :     No appearance
Second Respondent       :     No appearance

Case(s) referred to in judgment(s):

Byrne v Gray [1956] VLR 520; [1956] ALR 1111
Davies v Wylie & Geason (1992) 1 Tas R 73
Fisher v Hebburn Ltd [1960] HCA 80; (1960) 105 CLR 188
Maxwell v Murphy [1957] HCA 7; (1957) 96 CLR 261
Page v Winkler (1975) 12 SASR 126
Rayney v AW [2009] WASCA 203
Re an application under the Magistrates Court Act 2004; Ex parte Brecker [2007] WASC 151

EM HEENAN J: Simply stated, the issue raised by this application for review of a decision of the first respondent, as a magistrate sitting in the Magistrates Court, imposing a sentence against the second respondent for a breach of s 60(1b) of the Road Traffic Act1974 (WA) is whether or not his Honour was correct in treating this as the second respondent's first offence of that kind or whether, as the applicant submits, his Honour was bound in law to treat it as a second offence and, as such, liable to a greater mandatory penalty. As with many questions capable of simple formulation, the controversy which it raises is less than straightforward. It arises because amendments made to s 60 of the Road Traffic Act1974 by Act number 54 of 2006 significantly altered the ingredients of that offence and widened its scope so that from then on conduct which before may not have constituted an offence against that section then did so.
Earlier, on 17 May 2002, the second respondent, Mr Erin Cummins, had been convicted of the offence of reckless driving contrary to s 60(1) of the Road…

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 Re Magistrate Black

Details

AGLC: Re Magistrate Black [2010] WASC 222
Case: [2010] WASC 222
Decision Date: 20 AUGUST 2010

CaseChat Overview and Summary

The decision of Re Magistrate Black involved an appeal by a defendant against the dismissal of an application to correct a sentence by a magistrate. The defendant had been convicted of an offence under the Road Traffic Act, specifically for driving without due care and attention. The magistrate dismissed the defendant's application to correct the sentence on the basis that the defendant had been previously convicted of a similar offence. The defendant appealed, arguing that the statutory modification of the ingredients of the offence after the first conviction should not have retrospective effect.

The court was required to determine whether the statutory modification of the ingredients of the offence under the Road Traffic Act, which occurred after the defendant's first conviction, had retrospective effect. The court needed to consider whether the modification applied to the defendant's second conviction, which occurred after the modification was enacted. The court also needed to consider the principles of legality and the effect of legislative amendments on existing convictions.

The court held that the statutory modification did not have retrospective effect. The court found that the modification did not apply to the defendant's second conviction, which occurred after the modification was enacted. The court held that the principles of legality required that legislative amendments not have retrospective effect, and that existing convictions should not be affected by subsequent legislative amendments. The court found that the modification was intended to apply only to future convictions, and that the defendant's second conviction was not affected by the modification. The appeal was dismissed.

The court's decision highlights the importance of considering the retrospective effect of legislative amendments when interpreting and applying the law. The court's finding that the statutory modification did not have retrospective effect ensures that existing convictions are not affected by subsequent legislative amendments, and that the principles of legality are upheld.

Orders