Stephen Barratt v Ali Merhi - [2013] ACTSC 123

STEPHEN BARRATT v ALI MERHI
[2013] ACTSC 123 (25 June 2013)

Road Transport (Driver Licensing) Act 1999 (ACT)
Road Transport (General) Act 1999 (ACT)
Road Transport (Alcohol and Drugs) Act 1977 (ACT)
Road Transport (Driver Licensing) Regulation 2000 (ACT)
Legislation Act 2001 (ACT)
Magistrates Court Regulation 2009 (ACT)
Proudman v Dayman (1941) 67 CLR 536

EX TEMPORE JUDGMENT

ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

No. SCA 1 of 2013

Judge: Nield AJ
Supreme Court of the ACT

Date: 25 June 2013

IN THE SUPREME COURT OF THE     )
  )          No. SCA 1 of 2013
AUSTRALIAN CAPITAL TERRITORY           )

Stephen Barratt
Applicant

v
Ali Merhi
Respondent

ORDER

Judge:  Nield AJ
Date:  25 June 2013
Place:  Canberra

THE COURT ORDERS THAT:

The appeal is allowed.

The order of Magistrate Mossop made on 14 December 2012 dismissing the information is set aside.

The respondent is guilty of the offence of driving a motor vehicle upon a public road on 18 March 2012 when his driver licence had been suspended by the Road Transport Authority.

The proceedings are remitted to the Magistrates Court on 28 June 2013 for mention to fix a date for the determination of a penalty for the offence.

The Director of Public Prosecutions is to pay the respondent’s costs of and incidental to the appeal, such costs to be agreed or, if not agreed, assessed in accordance with section 4(2) of the Magistrates Court Regulation 2009 (ACT).

The appellant is the Crown represented by the ACT Director of Public Prosecutions. The Crown has appealed from the dismissal of a charge brought against the respondent by the Director of Public Prosecutions for the respondent’s driving of a motor vehicle upon a public road on 18 March 2012 when his driver licence had been suspended by the Road Traffic Authority for three months from 16 January 2012 to 15 April 2012 in breach of section 32(2)(a) of the Road Transport (Driver Licensing) Act 1999 (ACT).

The respondent is Mr Ali Merhi.

The circumstances which brought the respondent before the Magistrates Court are not really in dispute. Those circumstances are contained in Exhibits 1 to 9 inclusive admitted into evidence during the proceedings in the Magistrates Court. Taken from those exhibits, these are the circumstances.

On a date before December 2010, the exact date is not revealed by the evidence, the records of the Road Traffic Authority in its driver licence register were changed to record that the respondent’s home address was a home in Loma Rudduck Street, Forde, 2914, and that his address for service of notices was a PO Box in Mawson, 2607.

On 29 November 2010 the respondent committed a driving offence, the type of offence is not revealed by the evidence. On 2 December 2010 a traffic infringement notice was posted to the respondent. The notice was sent to the respondent at the PO Box in Mawson, ACT, 2607. The notice was presumed to have been served on the respondent on 9 December 2010.…

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 Stephen Barratt v Ali Merhi

Details

AGLC: Stephen Barratt v Ali Merhi [2013] ACTSC 123
Case: [2013] ACTSC 123
Decision Date: 25 June 2013

CaseChat Overview and Summary

The appeal was brought by Stephen Barratt against Ali Merhi. The dispute arose from Mr Merhi's conviction of driving a motor vehicle on a public road while his driver’s licence was suspended. The matter was heard in the ACT Court of Appeal. The central legal issues the court needed to address were whether the conviction should stand and if there were any procedural errors in the handling of the case by the lower court.

The court examined the process followed by the magistrate in dismissing the information against Mr Merhi. The appeal court found that the magistrate had erred in law by not considering all the evidence and by dismissing the charge without allowing the prosecution an opportunity to respond to the defence's submissions. This procedural error was significant enough to warrant the setting aside of the original decision. Consequently, the appeal court found Mr Merhi guilty of the offence as charged. The proceedings were remitted back to the Magistrates Court for the determination of a penalty for the offence. Additionally, the Director of Public Prosecutions was ordered to pay the respondent’s costs of and incidental to the appeal.

Orders

Orders of the court

1. The appeal is allowed.

2. The order of Magistrate Mossop made on 14 December 2012 dismissing the information is set aside.

3. The respondent is guilty of the offence of driving a motor vehicle upon a public road on 18 March 2012 when his driver licence had been suspended by the Road Transport Authority.

4. The proceedings are remitted to the Magistrates Court on 28 June 2013 for mention to fix a date for the determination of a penalty for the offence.

5. The Director of Public Prosecutions is to pay the respondent’s costs of and incidental to the appeal, such costs to be agreed or, if not agreed, assessed in accordance with section 4(2) of the Magistrates Court Regulation 2009 (ACT).

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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