Strano v Australian Capital Territory

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL

Case Title:

Strano v Australian Capital Territory

Citation:

[2017] ACTCA 51

Hearing Date:

30 October 2017

DecisionDate:

2 November 2017

Before:

Elkaim and Bromwich JJ, and Robinson AJ

Decision:

See paragraph [37]

Catchwords:

APPEAL AND NEW TRIAL – APPEAL-GENERAL PRINCIPLES – In General and Right of Appeal – Limitation of actions – distinction between action in tort and action under human rights legislation.

Legislation Cited:

Human Rights Act 2004 (ACT) s 18(7)

Road Transport (Driver Licensing) Act 1999 (ACT) s 31(2)

Cases Cited:

Baker-Morrison v New South Wales [2009] NSWCA 35; 74 NSWLR 454
Commonwealth of Australia v Cornwell [2007] HCA 16; 229 CLR 519
Melisavon Pty Ltd v Springfield Land Development Corporation Pty Ltd [2014] QCA 233; 1 Qd R 476
Morro v Australian Capital Territory [2009] ACTSC 118; 234 FLR 71

Seal v Chief Constable of New South Wales Police [2007] UKHL 31; 4 All ER 177
Strano v Australian Capital Territory [2016] ACTSC 4; 306 FLR 232

Strano v Australian Capital Territory (No 2) [2016] ACTSC 206; 310 FLR 481

Parties:

Salvatore Strano (Appellant)

Australian Capital Territory (Respondent)

Representation:

Counsel

Mr T Crispin (Appellant)

Mr P Garrison AM SC and Ms N Tarbet (Respondent)

Solicitors

John O’Keefe (Appellant)

ACT Government Solicitor (Respondent)

File Number:

ACTCA 51 of 2016

Decision under appeal: 

Court:  ACT Supreme Court

Before:  Penfold J

Date of Decision:         5 August 2016

Case Title:  Strano v Australian Capital Territory     (No 2)

Citation: [2016] ACTSC 206

THE COURT:

1. On 20 February 2005, the appellant was stopped by police while driving a vehicle in the Australian Capital Territory. Nine days later, he was charged with driving while unlicensed, contrary to s 31(2) of the Road Transport (Driver Licensing) Act 1999 (ACT). Significantly, he was charged with the aggravating circumstance, for sentence purposes only, of being a repeat offender, as defined. That circumstance elevated the maximum penalty from 20 penalty units to 50 penalty units and/or imprisonment for six months.

1. On 1 June 2005, following a plea of guilty, Magistrate Lalor sentenced the appellant to three months full-time imprisonment. The appellant was immediately taken into custody and remained in prison until 31 August 2005.

1. On 25 May 2007, Magistrate Burns (as he then was) was dealing with the appellant for different offences. In the course of his deliberations, Magistrate Burns noticed that the appellant had been incorrectly charged in 2005, in that he should not have been treated as a repeat offender and, therefore, should not have been imprisoned.

1. On 26 June 2007, the appellant commenced an appeal against the orders made on 1 June 2005. The appeal was heard by Marshall J on 4 December 2007. His Honour did not overturn the conviction flowing from the guilty plea. Instead, he allowed the appeal on sentence. “No penalty” was substituted for the original imprisonment order.

1. On 19 December 2012, the appellant commenced civil proceedings in the Magistrates Court seeking damages…