Smith v Brooks - [1988] TASSC 43

Serial No 34/1988
List “A”
COURT:SUPREME COURT OF TASMANIA (COURT OF CRIMINAL APPEAL)

CITATION: Smith v Brooks [1988] TASSC 43; (1988) Tas R 92; A34/1988

PARTIES:  Smith
  v
  Brooks

FILE NO/S:  42/1987
DELIVERED ON:  31 August 1988
DELIVERED AT:  Hobart
JUDGMENT OF:  Green CJ, Cosgrove and Underwood JJ

Judgment Number: A34/1988
Number of paragraphs: 35

Serial No 34/1988[i]

List "A"

File No FCA 42/1987

SMITH v BROOKS

REASONS FOR JUDGMENT FULL COURT

GREEN CJ

COSGROVE J

UNDERWOOD J

ORDERS OF THE COURT

1.      Appeal allowed.
2.      Judgment and orders of Nettlefold J dated 14 April 1987 set aside.
3.      Orders made in the Court of Petty Sessions dated 28 October 1986 restored.

Serial No 34/1988

List "A"

File No FCA 421987

SMITH v BROOKS

REASONS FOR JUDGMENT FULL COURT

GREEN CJ

31 August 1988

For the reasons for judgment published by Cosgrove J I agree that the appeal should be allowed. I only wish to add the following observations.

The power conferred upon magistrates by s76A to amend or alter at any time what would otherwise be regarded as final and effective orders is a special statutory power, the nature and scope of which is to be determined by reference to the terms of s76A and not by reference to limitations which may exist upon the exercise of the discretion to extend the time limited for the exercise of the quite distinct power of appellate review.

The primary issue before the magistrate was whether for the purposes of s76A of the Justices Act 1959 he had imposed penalties which were contrary to law. Because the regulations were ultra vires the penalties which he had imposed were not authorised by any law and were thus plainly contrary to law. The time when the invalidity of the regulations was discovered by the magistrate is not relevant to the determination of the issue of whether the penalties were authorised by law.

The learned judge held that what the magistrate did was "to re–open a transaction past and closed and to set at nought valid convictions and orders". But s.76A clearly contemplates that a magistrate has the power to amend or alter orders that would otherwise be regarded as past and closed and the magistrate's orders were valid only in the limited sense that as the validity of the regulations was not challenged in the original hearing they were presumed to be intra vires and the penalties thus appeared to be authorised by law. But in the subsequent proceedings the validity of the regulations was challenged and the magistrate properly held that the penalties were contrary to law and was thus empowered by s76A to amend his orders.

Serial No 34/1988

List "A"

File No FCA 42/1987

ANTHONY ALBERT SMITH v REX WILLIAM BROOKS

REASONS FOR JUDGMENT FULL COURT

COSGROVE J

31 August 1988

On 31 July 1986, his Worship Mr R B Chen, magistrate, heard a complaint by the respondent against the appellant. The complaint alleged that the appellant had committed 9…

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 Smith v Brooks

Details

AGLC: Smith v Brooks [1988] TASSC 43
Case: [1988] TASSC 43
Decision Date: 31 August 1988

CaseChat Overview and Summary

In the Supreme Court of Tasmania, the case of Smith v Brooks centred on an appeal against the decision of a magistrate to vacate special penalties imposed on the appellant, Smith, for breaches of Sea Fisheries Regulations. The appellant was convicted of nine breaches of these regulations, five related to abalone and four to crayfish, and was fined a total of $360. Additionally, special penalties totalling $26,450 in respect of the abalone offences and $120 for the crayfish offences were imposed. After the Full Court held in Munday v Cole that certain regulations were ultra vires and invalid, the magistrate vacated the special penalties imposed on Smith on the basis that they were not in conformity with the law. The Director of Public Prosecutions subsequently lodged a Notice to Review this order, which was granted by Nettlefold J, leading to this appeal.

The primary legal issue before the Court was the nature and limit of the power granted to magistrates by section 76A of the Justices Act. This section allows magistrates to amend or alter penalties imposed that are contrary to the law, among other things. The appellant contended that the imposition of the special penalties was contrary to the law because the regulations were void and incapable of authorising a judicial act. The respondent, on the other hand, argued that the magistrate's order was based on a presumption that the regulations were valid and that the magistrate had a discretion whether or not to vacate the penalties.

The Court found that the power conferred by section 76A is a special statutory power, the scope of which is to be determined by reference to its terms and not by any limitations on the exercise of appellate discretion. The Court held that the special penalties imposed were contrary to the law because the regulations were void, and thus the magistrate had the unqualified duty to amend his order to remove those penalties. The Court rejected the respondent's contention that the magistrate had a discretion to refuse to vacate the penalties, finding that the section as a whole suggests a duty to make such corrections. The Court also dismissed the respondent's argument that the magistrate's order was immune to challenge because it was presumed to be valid until successfully challenged in a court of competent jurisdiction.

The Court allowed the appeal, set aside the judgment and orders of Nettlefold J, and restored the orders made in the Court of Petty Sessions. The Court's decision confirmed that section 76A provides a clear and corrective power to magistrates to amend orders that are contrary to the law, without any temporal limitation.

Orders