Richardson, Roger v Chatwin, Damien John

[1998] TASSC 118

118/1998

PARTIES:  RICHARDSON, Roger
  v
  CHATWIN, Damien John

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  APPELLATE
FILE NO/S:  LCA 16/1998
DELIVERED:  29 September 1998
HEARING DATE/S:  29 September 1998
JUDGMENT OF:  Crawford J

CATCHWORDS:

Edited edition of reasons for judgment given orally

REPRESENTATION:

Counsel:
           Applicant:  L A Mason
           Respondent:  T K Jago
Solicitors:
           Applicant:  Director of Public Prosecutions
           Respondent:  Crisp Hudson & Mann

Judgment category classification:
Court Computer Code:  
Judgment ID Number:  118/1998
Number of pages:  2

Serial No 118/1998

File No LCA 16/1998

ROGER RICHARDSON v DAMIEN JOHN CHATWIN

REASONS FOR JUDGMENT  CRAWFORD J

29 September 1998

The applicant has applied to review an order of a magistrate which dismissed a complaint charging the respondent with eight counts of contravening a condition of a bail order contrary to the Bail Act 1994, s9. The first count charged the respondent with being a person admitted to bail in the Burnie Supreme Court on 16 March 1998, he contravened without reasonable cause a condition of the order for bail which required him to report to the Burnie Police Station each Monday, Wednesday and Friday, between the hours of 9am and 5pm, and to sign the Register of Persons Reporting, in that on 18 March 1998 he failed to sign the Register. The other counts charged the respondent with similarly offending in breach of the same bail order on later dates.

The learned magistrate held that he did not have jurisdiction to hear the complaint because the Bail Act 1994, ss10 and 11, required breaches of bail orders made by the Supreme Court or a judge to be dealt with by a judge and not by a magistrate. With respect the learned magistrate was plainly in error.

The Act, s9, creates the offence of contravening a condition of an order for bail. The expression "order for bail" encompasses bail orders made in both the Supreme Court and a court of petty sessions. Section 9 provides that on summary conviction for such an offence the offender is liable to a fine not exceeding ten penalty units or imprisonment for a period not exceeding six months or both. Clearly, the section gives exclusive original jurisdiction to hear charges under the section to courts of petty sessions, regardless of whether the bail order was made by such a court or by a judge of this Court.

Whenever an offender is liable on summary conviction for an offence to a specified penalty or to a penalty not exceeding a specified penalty, the proceedings in respect of the offence must be taken in accordance with the Justices Act 1959. That is the requirement of the Acts Interpretation Act 1931, s38(1). The Supreme Court has no original jurisdiction with respect to such an offence.

The purposes and effects of the provisions of the Bail Act 1994, ss10 and 11, have no bearing on the outcome of this case. Section 10 empowers police officers to arrest persons believed on reasonable grounds to have contravened or to be about to contravene a condition of a bail order. Section 11 provides how, following such an arrest, a justice or a judge may deal with the arrested person. In the first instance, the arrested person must be taken before a justice. If the order for bail was made by the Supreme Court or a judge, the justice may remand that person in custody to appear before a judge. The justice, if the bail order was made under the Justices Act 1959, or the judge, if the bail order was made by the Supreme Court or a judge, may make orders providing for the further bail, custody and remand of the arrested person. There is, however, no power given by s11 to deal with the charge of an offence under s9 of contravening a condition of a bail order.

It follows from the legislative provisions to which I have referred that neither the Supreme Court or a judge have original jurisdiction to hear a charge of contravening a condition of an order for bail.  Notwithstanding that the order may have been made by the Supreme Court or a judge, only a court of summary jurisdiction, under the Justices Act 1959, has power to hear a charge under the Bail Act 1994, s9.

For these reasons there will be an order setting aside the order made on 20 July 1998 in a court of petty sessions at Burnie, whereby complaint 26472/1998 was dismissed.  There will also be an order that the complaint be remitted to a magistrate for hearing.