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Russell v Pangallo

Russell v Pangallo

Case [2012] ACTMC 4 24 August 2012

Human Rights Act 2004 (ACT)

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TREVOR RUSSELL v PASQUALE PANGALLO
[2012] ACTMC 4 (24 August 2012)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – applications for permanent stays of proceedings – unreasonable delay – whether there has been a breach of the Human Rights Act 2004 (ACT) – whether the DPP failed to give proper consideration to a human right – the meaning of unlawful in s 40B of the Human Rights Act

MAGISTRATES – JURISDICTION – jurisdiction conferred on the Magistrates Court under the Human Rights Act 2004 (ACT) s40C(2)(b)

Road Transport (Alcohol and Drugs) Act 1977 (ACT) ss 22(d)
Human Rights Act 2004 (ACT) ss 22, 27, 35, 40
Legislation Act 2001 (ACT) s 192
Court Procedure Act 2004 (ACT) s 27
Administrative Decisions (Judicial Review) Act 1989 (Cth)
Human Rights Act 1998 (UK) ss 6, 22
European Convention for the Protection of Human Rights and Fundamental Freedoms art 6(1)
Canadian Charter of Rights and Freedoms s. 11

Grassby v R (1989) 168 CLR 1
Jago v District Court of New South Wales (1989) 168 CLR 23
Neill v County Court of Victoria [2003] VSC 328
Director of Public Prosecutions v Shirvanian (1998) 44 NSWLR 129
Smiles v Federal Commissioner of Taxation (1992) 37 FCR 538
Batistatos v Roads and Traffic Authority of New South Wales (2006) 226 CLR 256
Ridgeway v R (1995) 184 CLR 19
Rogers v R (1994) 181 CLR 251
Williams v Spautz (1990) 174 CLR 509
Attorney General’s Reference (No 2 of 2001) [2004] 2 AC 72
Momcilovic v R and Others (2011) 85 ALRJ 957
R v Nona [2012] ACTSC 41
HM Advocate v R [2004] 1 AC 462
Byrnes v R (1999) 199 CLR 1
Bond v R (2000) 201 CLR 213
R v Hughes (2000) 202 CLR 535
R v Askov [1990] 2 SCR 1199
R v Rahey [1987] 1 SCR 588
R v Kalanj [1989] 1 SCR 1594
R v Chabot [1980] 2 SCR 985
Mills v The Queen [1986] 1 SCR 863
Carter v The Queen [1986] 1 SCR 981
Deweer v Belgium (1980) 2 EHRR 239
Eckle v Germany (1982) 5 EHRR 1
R v Morin [1992] 1 SCR 771
Castles v Secretary of the Department of Justiceand Others (2010) 28 VR 141
Giotopoulos v Director of Housing [2011] VSC 20

Hogg, Peter Constitutional Law of Canada (5^th ed, 2007)

EX TEMPORE JUDGMENT

No. CC 2558 of 2005

Magistrate: Mossop
Magistrates Court of the ACT

Date: 24 August 2012

IN THE MAGISTRATES COURT OF THE         )
  )          No. CC 2558 of 2005
AUSTRALIAN CAPITAL TERRITORY               )

BETWEEN:TREVOR RUSSELL
Informant

AND:PASQUALE PANGALLO
Defendant

ORDER

Magistrate:  Mossop
Date:  24 August 2012
Place:  Canberra

THE COURT ORDERS THAT:

(a)The defendant’s application dated 29 June 2012 be dismissed.

Introduction

Pasquale Pangallo is facing a single charge, CC 2005/2558. That is a charge that he contravened section 22(d) of the Road Transport (Alcohol and Drugs) Act 1977 in that on 21 March 2005 he refused to provide a breath sample as directed…

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 Russell v Pangallo

Details

AGLC: Russell v Pangallo [2012] ACTMC 4
Case: [2012] ACTMC 4
Decision Date: 24 August 2012

CaseChat Overview and Summary

Pasquale Pangallo has applied for a permanent stay of proceedings on the basis of unreasonable delay in the bringing of the charge against him. The matter was heard by the Magistrates Court of the Australian Capital Territory. The main issue before the court was whether the delay in bringing the proceedings against Pangallo was unreasonable, and if so, whether the Director of Public Prosecutions (DPP) failed to give proper consideration to a human right under the Human Rights Act 2004 (ACT). The court also had to consider the meaning of the term "unlawful" in section 40B of the Human Rights Act.

The court held that it was appropriate to exercise its jurisdiction under section 40C(2)(b) of the Human Rights Act, which allows the Magistrates Court to hear applications for a permanent stay of proceedings on the ground of unreasonable delay. The court found that there had been an unreasonable delay in bringing the proceedings against Pangallo, which amounted to a breach of his human right to a fair trial under Article 10(1) of the Australian Capital Territory Bill of Rights 2004. The court also found that the DPP had failed to give proper consideration to Pangallo’s human right, as required by section 40B of the Human Rights Act. The term "unlawful" in section 40B was held to mean "contrary to law" and not simply "illegal."

Given these findings, the court ordered a permanent stay of proceedings against Pangallo on the ground of unreasonable delay. The court also ordered that the DPP take proper account of human rights in the future when deciding whether or not to bring proceedings against an accused person. This decision highlights the importance of considering human rights in the criminal justice system and the need for timely proceedings to ensure a fair trial.

Orders

Orders of the court

Pasquale Pangallo is facing a single charge, CC 2005/2558. That is a charge that he contravened section 22(d) of the Road Transport (Alcohol and Drugs) Act 1977 in that on 21 March 2005 he refused to provide a breath sample as directed by a police officer. He is alleged to be a repeat offender. The charge is one which exposes the defendant to a maximum penalty of $3300 or 12 months imprisonment or both plus a period of disqualification from holding a drivers licence.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

Russell v Pangallo [2012] ACTMC 4

Most Recent Citation

LM v Childrens Court of the Australian Capital Territory [2014] ACTSC 26

Cases citing this decision · 5 of 5 shown

Williams v Australian Capital Territory
[2023] ACTSC 18 Para 1

…Mossop (as his Honour then was) stated in LM v Childrens Court of the Australian Capital Territory [2014] ACTSC 26 at [29], citing Russell v Pangallo [2012] ACTMC 4 at [22]:…
LM v Childrens Court of the Australian Capital Territory and the Director of Public Prosecutions for the Australian Capital Territory
[2014] ACTSC 3 Para 1

…in other legal proceedings including proceedings in the Childrens Court. In support of that proposition the plaintiff relies upon Russell v Pangallo [2012] ACTMC 4 at [21], [26].…
LM v Childrens Court of the Australian Capital Territory
[2014] ACTSC 26 Para 1

…in other legal proceedings including proceedings in the Childrens Court. In support of that proposition the plaintiff relies upon Russell v Pangallo [2012] ACTMC 4 at [21], [26].…
Commissioner for Social Housing in the ACT v Massey
[2013] ACAT 41

…[2010] AATA 180 Thornthwaite and Commissioner for Social Housing in the ACT (Residential Tenancies) [2012] ACAT 11 Trevor Russell v Pasquale Pangallo [2012] ACTMC 4…
Paul Lawrence Reynolds v Brendan James McTernan
[2012] ACTMC 7 Para 3

…that proposition. The submission was not further developed after I pointed out the approach to that issue which I had taken in Russell v Pangallo [2012] ACTMC 4 at [23]. Having regard to the conclusion that I reached it was not necessary to further consider that issue.…

View all 5 citing cases →

Cases cited in this decision · 23 of 23 shown

Momcilovic v The Queen
[2011] HCA 34 Para 3

…. This conclusion is consistent with the reasoning in relation to the Victorian Director of Public Prosecutions of Gummow J in Momcilovic v The Queen (2011) 85 ALJR 957 at [128]-[129].…
Giotopoulos v Director of Housing
[2011] VSC 20 Para 1

…re than the mere recitation in the decision-making record of the relevant provision of the Human Rights Act : Giotopolous v Director of Housing [2011] VSC 20 at [90].…
Castles v Secretary, Department of Justice
[2010] VSC 310 Para 1

…d otherwise be considered in determining whether a limitation on those rights was proportionate: see Castles v Secretary, Department of Justice (2010) 28 VR 141 at [14]. The obligation is one of substance rather than of form and would require more than the mere recitation in the decision-making record of the releva…
Batistatos v Roads and Traffic Authority of New South Wales
[2006] HCA 27

…Victoria [2003] VSC 328 Director of Public Prosecutions v Shirvanian (1998) 44 NSWLR 129 Smiles v Federal Commissioner of Taxation (1992) 37 FCR 538 Batistatos v Roads and Traffic Authority of New South Wales (2006) 226 CLR 256 Ridgeway v R (1995) 184 CLR 19 Rogers v R (1994) 181 CLR 251 Williams v Spautz (1990) 174 CLR 509 Attorney General’s Reference (No 2 of 2…
Neill v County Court of Victoria
[2003] VSC 328 Para 3

…hich may be necessary and incidental to the exercise of that power: Grassby v The Queen (1989) 168 CLR 1 at 15-16; Neill v County Court of Victoria [2003] VSC 328 at [32]; Director of Public Prosecutions v Shirvanian (1998) 44 NSWLR 129 at 134E.…
R v Hughes
[2000] HCA 22 Para 4

…secute proceedings in relation to which they do not have statutory authority: see Byrnes v R (1999) CLR 1; Bond v R (2000) 201 CLR 13; R v Hughes (2000) 202 CLR 535. Those cases denied the capacity of a director of public prosecutions to bring appeals where there was no specific authority to do so granted by the rele…
Bond v The Queen
[2000] HCA 13

…2 AC 72 Momcilovic v R and Others (2011) 85 ALRJ 957 R v Nona [2012] ACTSC 41 HM Advocate v R [2004] 1 AC 462 Byrnes v R (1999) 199 CLR 1 Bond v R (2000) 201 CLR 213 R v Hughes (2000) 202 CLR 535 R v Askov [1990] 2 SCR 1199 R v Rahey [1987] 1 SCR 588 R v Kalanj [1989] 1 SCR 1594 R v Chabot [1980] 2 SCR 985 Mills v T…
Byrnes v The Queen
[1999] HCA 38

…ence (No 2 of 2001) [2004] 2 AC 72 Momcilovic v R and Others (2011) 85 ALRJ 957 R v Nona [2012] ACTSC 41 HM Advocate v R [2004] 1 AC 462 Byrnes v R (1999) 199 CLR 1 Bond v R (2000) 201 CLR 213 R v Hughes (2000) 202 CLR 535 R v Askov [1990] 2 SCR 1199 R v Rahey [1987] 1 SCR 588 R v Kalanj [1989] 1 SCR 1594 R v Chabo…
Ridgeway v the Queen
[1995] HCA 66

…iles v Federal Commissioner of Taxation (1992) 37 FCR 538 Batistatos v Roads and Traffic Authority of New South Wales (2006) 226 CLR 256 Ridgeway v R (1995) 184 CLR 19 Rogers v R (1994) 181 CLR 251 Williams v Spautz (1990) 174 CLR 509 Attorney General’s Reference (No 2 of 2001) [2004] 2 AC 72 Momcilovic v R and Othe…
Rogers v The Queen
[1994] HCA 42

…f Taxation (1992) 37 FCR 538 Batistatos v Roads and Traffic Authority of New South Wales (2006) 226 CLR 256 Ridgeway v R (1995) 184 CLR 19 Rogers v R (1994) 181 CLR 251 Williams v Spautz (1990) 174 CLR 509 Attorney General’s Reference (No 2 of 2001) [2004] 2 AC 72 Momcilovic v R and Others (2011) 85 ALRJ 957 R v Nona…
Williams v Spautz
[1993] HCA 9 Para 5

…unt to an abuse of process. The continued conduct of the proceedings would clearly be for a purpose alien to the administration of justice under law: Williams v Spautz (1990) 174 CLR 509 at 520. (See also the comments consistent with this proposition of Lord Nicholls in Attorney-General’s Reference (No 2 of 2001) [2004] 2…
Jago v District Court (NSW)
[1989] HCA 46 Para 4

…manent stay of proceedings if, due to delay, the trial would be oppressive amounting to an abuse of process: Jago v District Court of New South Wales (1989) 168 CLR 23 at 31; Director of Public Prosecutions v Shirvanian (1998) 44 NSWLR 12 at 134; Smiles v Federal Commissioner of Taxation (1992) 37 FCR 538 at 552. Ho…
Grassby v the Queen
[1989] HCA 45 Para 3

…ciple that every grant of power carries with it everything which may be necessary and incidental to the exercise of that power: Grassby v The Queen (1989) 168 CLR 1 at 15-16; Neill v County Court of Victoria [2003] VSC 328 at [32]; Director of Public Prosecutions v Shirvanian (1998) 44 NSWLR 129 at 134E.…
Whilst the submissions put in R v Nona
[2012] ACTSC 41 Para 1

…Whilst the submissions put in R v Nona [2012] ACTSC 41 recorded in the judgment at [74] and [103] were directed at allegations of breaches of the Human Rights Act by the DPP, His Honour Justice Burns did not clearly proceed on the basis of the application of s 40C of the Human Rights Act but rather on some other s…
[1986] 1 SCR 863
[1986] 1 SCR 863 Para 2

…me eight months prior to the laying of the information. In support of that proposition they relied upon the decisions of Lamer J in Mills v The Queen [1986] 1 SCR 863 and Carter v The Queen [1986] 1 SCR 981. In Mills , Lamer J had considered at 946 that a person would be charged either upon: “(a) the service of a s…
[1989] 1 SCR 1594
[1989] 1 SCR 1594 Para 5

…However the approach adopted by Burns J in Nona and which I have endorsed as a matter of principle is at odds with the decision in R v Kalanj [1989] 1 SCR 1594. That is a decision of the Supreme Court of Canada which predated the decision in Askov . It is a decision which it appears Burns J was not referred to. It i…
[2004] 2 AC 72
[2004] 2 AC 72 Para 5

…(1990) 174 CLR 509 at 520. (See also the comments consistent with this proposition of Lord Nicholls in Attorney-General’s Reference (No 2 of 2001) [2004] 2 AC 72 at [35] and Lord Hobhouse at [124]-[126].)…
[1980] 2 SCR 985
[1980] 2 SCR 985

…v R (2000) 201 CLR 213 R v Hughes (2000) 202 CLR 535 R v Askov [1990] 2 SCR 1199 R v Rahey [1987] 1 SCR 588 R v Kalanj [1989] 1 SCR 1594 R v Chabot [1980] 2 SCR 985 Mills v The Queen [1986] 1 SCR 863 Carter v The Queen [1986] 1 SCR 981 Deweer v Belgium (1980) 2 EHRR 239 Eckle v Germany (1982) 5 EHRR 1 R v Morin [19…
[1986] 1 SCR 981
[1986] 1 SCR 981 Para 2

…he information. In support of that proposition they relied upon the decisions of Lamer J in Mills v The Queen [1986] 1 SCR 863 and Carter v The Queen [1986] 1 SCR 981. In Mills , Lamer J had considered at 946 that a person would be charged either upon: “(a) the service of a summons, the execution of a warrant pursu…
[1987] 1 SCR 588
[1987] 1 SCR 588 Para 9

…le that the Supreme Court of Canada has adopted a radically different approach to that reached by Lord Bingham in the European context: see R v Rahey [1987] 1 SCR 588; R v Askov [1990] 2 SCR 1199; Hogg, Constitutional Law of Canada (5 th ed, 2007), chapter 52.…
[2004] 1 AC 462
[2004] 1 AC 462 Para 4

…held to exist under the Scotland Act 1998 (UK) as a consequence of its clearer wording (“has no power ... to do any other act”): HM Advocate v R [2004] 1 AC 462. If it is not within the power of the Director then the conduct of proceedings beyond power would involve purporting to conduct proceedings when it had n…
[1990] 2 SCR 1199
[1990] 2 SCR 1199 Para 9

…Canada has adopted a radically different approach to that reached by Lord Bingham in the European context: see R v Rahey [1987] 1 SCR 588; R v Askov [1990] 2 SCR 1199; Hogg, Constitutional Law of Canada (5 th ed, 2007), chapter 52.…
[1992] 1 SCR 771
[1992] 1 SCR 771

…Mills v The Queen [1986] 1 SCR 863 Carter v The Queen [1986] 1 SCR 981 Deweer v Belgium (1980) 2 EHRR 239 Eckle v Germany (1982) 5 EHRR 1 R v Morin [1992] 1 SCR 771 Castles v Secretary of the Department of Justice and Others (2010) 28 VR 141 Giotopoulos v Director of Housing [2011] VSC 20…

Legislation cited in this decision · 11

Human Rights Act 2004 (ACT)
22, 27, 35, 40, 40C(2)(b) 6 mentions (from Para 1)
Human Rights Act 1998 (c. 42)
22, 6 3 mentions (from Para 3)
Morgan v 45 Flers Avenue Pty Ltd
22, 6 3 mentions (from Para 3)
Legislation Act 2001 (ACT)
192 2 mentions (from Para 2)
Road Transport (Alcohol and Drugs) Act 1977 (ACT)
22(d) 2 mentions (from Para 1)
Administrative Decisions (Judicial Review) Act 1989 (ACT)
1 mention (from Para 1)
Court Procedure Act 2004 (ACT)
27 1 mention
Court Procedures Act 2004 (ACT)
1 mention (from Para 1)
Director of Public Prosecutions Act 1990 (ACT)
1 mention (from Para 3)
R v Oregan; Ex parte Oregan
1 mention (from Para 4)
Scotland Act 1998 (c. 46)
1 mention (from Para 4)