Magistrates – Appeal and review – Tasmania – Motion to review – Procedure and evidence – Power of Court to compel production of documents from Tasmania Police by subpoena or order prior to hearing.

Justices Act1959 (Tas), ss 107, 110.
Supreme Court Civil Procedure Act1932 (Tas), s 9.
Supreme Court Rules 2000 (Tas), r 4.
Justices Review Rules 2004 (Tas).
Justices Rules 2003 (Tas).
Traynor v McCulloch [2011] TASSC 41, referred to.
Aust Dig Magistrates [1348]

REPRESENTATION:

Counsel:
             Applicant:  N/A
             Respondent:  S Nicholson
Solicitors:
             Applicant:  In person
             Respondent:  Acting Director of Public Prosecutions

Judgment Number: [2015] TASSC 19
Number of paragraphs: 50

Serial No 19/2015
File No 805/2012

RODNEY DAVID SYNFIELD v SENIOR SERGEANT JOHN PARKER

REASONS FOR JUDGMENT TENNENT J

20 May 2015

These reasons concern the question of what, if any, power this Court has on the hearing of a notice to review, not being a hearing de novo, to compel production by subpoena or otherwise of documents asserted to be in the possession of Tasmania Police. It is necessary to provide the background to the matter to understand how the issue has arisen.
By complaint number 30268/12B, the applicant, Rodney Synfield, was charged with two counts of common assault and one count of injure property. A co-accused, Neil Graham, was charged with the same offences on complaint number 30268/12A. Following a hearing before Magistrate Pearce (as he then was), his Honour found each charge proved against the applicant and Mr Graham. On 24 August 2012, his Honour sentenced both men in respect of the charges. Pursuant to the Sentencing Act 1997, s 7(f), without recording a conviction, his Honour adjourned the proceedings for a period of 18 months upon undertakings by the applicant and Mr Graham that each would be of good behaviour for that period and would reappear for conviction and sentence if called upon to do so. Both the applicant and Mr Graham were unrepresented at the hearing before the learned magistrate. As might be inferred from the sentence imposed, both the assaults and the injure property were considered to be relatively minor.
On 14 September 2012, a lawyer acting for both the applicant and Mr Graham filed a notice to review. There were five grounds of review. While the notice itself appeared to be in respect of the sentence imposed, the grounds made it clear that both the applicants also sought a review of the findings of guilt. The grounds were in the following terms:
"1That the learned Magistrate erred by failing to explain to the applicant the proper and correct procedure…

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 Synfield v Parker

Details

AGLC: Synfield v Parker [2015] TASSC 19
Case: [2015] TASSC 19
Decision Date: 20 May 2015

CaseChat Overview and Summary

In the matter of Synfield v Parker, the court was presented with a dispute concerning the power of the Court to compel production of documents from the Tasmania Police through a subpoena or order prior to the hearing. The applicant, Synfield, sought a review of an order made by a justice of the peace under the Justices Act 1959. Synfield's primary concern was the procedural issue of whether the Supreme Court had the authority to mandate the production of documents from the Tasmania Police before the hearing of a motion to review.

The legal issue at the core of the case was whether the Supreme Court could compel the production of documents from the Tasmania Police by subpoena or order prior to the hearing of a motion to review. This involved interpreting the relevant sections of the Justices Act 1959 and determining the extent of the court's power in such proceedings. Specifically, the court had to assess whether such power was within the scope of the authority conferred by the Act, or whether it required additional legislative action.

The court considered the statutory framework provided by the Justices Act 1959 and found that the Act did not explicitly grant the Supreme Court the power to compel the production of documents from the Tasmania Police prior to the hearing of a motion to review. The court concluded that the powers conferred to the Supreme Court under the Act were limited to the review of orders made by justices of the peace, and did not extend to the pre-hearing production of documents from external entities such as the Tasmania Police. Consequently, the court ruled that it did not have the authority to compel such production without additional legislative measures.

In light of the findings, the court dismissed the motion to review brought by Synfield. The court emphasised that the statutory provisions did not support the requested power to compel document production, and therefore, no such order could be made. This decision underscored the importance of adhering to the legislative framework and the necessity of clear statutory authority for any extension of judicial powers.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

As a starting point it is necessary to look at the nature of the proceedings involving a notice to review. The Justices Act 1959 ("the Act"), Pt XI, deals with motions to review to this Court and hearings de novo. Sections 107, 108, 110 and 124 (I have omitted s 111 because it relates to hearings de novo and that is not being pursued), relevantly provide as follows:"107 Summary mode of reviewing decisions of justices (1) A person who is aggrieved by an order of justices may, upon notice in accordance with this section, move the Supreme Court to review that order.(2) A notice of motion under this section — (a) shall be known as a notice to review; and(b) shall set forth in specific terms the ground on which review is sought.(3) An applicant under this section shall, within 21 days after the making of the order to be reviewed — (a) file a notice to review in the Supreme Court; and(b) serve a copy of that notice on — (i)the person interested in upholding the order; and(ii)the clerk to the justices making the order.(4) The grounds set forth in a notice to review shall allege — (a) an error or mistake on the part of the justices on a matter or question of fact alone, or of law alone, or of both fact and law; or(b) that the justices had no jurisdiction to make the relevant order.(5) …(6) …108 Applicant limited to grounds to be stated in notice to review (1) On the hearing of a motion made on notice to review, the applicant shall be held to the ground set forth in his notice to review unless the court, on such terms as to costs and otherwise as it thinks proper, allows amendment of the notice.(2) A notice to review may be amended under this section by adding new grounds and by striking out and amending existing grounds.110 Powers of Supreme Court (1) The Supreme Court shall be constituted by a single judge for the hearing of motions to review under section 107, but the judge may reserve the motion or any point arising thereon for the Full Court or direct the motion or any such point to be argued in the Full Court, and the Full Court has power to hear and determine any motion or point so reserved or directed to be argued.(2) On the hearing of a motion to review, the court shall, upon consideration of the evidence and materials adduced and brought before the justices and such further evidence (if any) as it thinks fit, review the order so far as relates to the ground set forth in the notice to review, and thereupon may do all or any of the following things, namely:(a)dismiss the motion;(ab)in a case where the court considers that no substantial miscarriage of justice has occurred even though the cause or matter raised by the motion might be decided in favour of the applicant, dismiss the motion;(b)confirm, vary, amend, rescind, set aside, or quash the order reviewed;(c)remit the cause or matter to the justices by whom it was dealt with, either with or without any direction in law;(d)order that the cause or matter be re-tried by a magistrate;(e)prohibit the justices concerned, or any other person, from proceeding or further proceeding in respect of the order;(f)amend or cause to be amended, on such terms as are just, any defect or error in any proceedings before the justices;(g)make all such orders and cause all such proceedings to be had and taken as the court thinks necessary to secure a final determination of the cause or matter on the merits;(h)exercise, in addition to any other powers conferred by this section, any power which the court might exercise upon habeas corpus or an order of review under the Judicial Review Act 2000;(i)exercise any power that might have been exercised by the justices in relation to whose order the motion to review is made.(3) On the hearing of a motion to review, all such amendments shall be made under subsection (2)(f) as may be necessary for the purpose of determining the cause or matter on the merits.124 Rules of court The judges, or a majority of them, may make general rules and orders to regulate the practice and procedure under this Part, and for carrying this Part into effect, and, subject to the provisions of this Act, may prescribe the fees to be taken and the costs to be allowed."

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Actions

Citations

Synfield v Parker [2015] TASSC 19

Cases Citing This Decision

No citing cases yet.

Cases Cited

Traynor v McCullough [2011] TASSC 41
Citation 1 (Para 14)

…Crawford CJ in Traynor v McCullough [2011] TASSC 41 dealt with a notice to review in which an application was made by an applicant to adduce further evidence not before the magistrate. His Honour carried out an extensive review of the authorities relating to the power of the Court to receive further evidence by re…
Hudson v Australian Food Group Pty Ltd [2006] TASSC 48
Citation 2 (Para 14)

…the case to be re-tried. Counsel relied on statements of Underwood J (as he then was) in Brinkman v Dix (No 2) [1999] TASSC 65 and of Tennent J in Hudson v Australian Food Group Pty Ltd (2006) 15 Tas R 322. When the Justices Act was originally enacted in 1959, it provided for an aggrieved party to proceedings before justices (which term inclu…
Turner v Driver [2005] TASSC 85
Citation 3 (Para 14)

…otion to review. Upon the hearing of a motion to review that was treated as concerning both conviction and sentence, Evans J in Turner v Driver [2005] TASSC 85 at par[6] held that the clear effect of the Act, ss107, 108 and 110(2) was that, save for a ground that asserts that the magistrate has no jurisdiction, th…
Brinkman v Dix (No 2) [1999] TASSC 65
Citation 4 (Para 14)

…quash the order of review and remit the case to be re-tried. Counsel relied on statements of Underwood J (as he then was) in Brinkman v Dix (No 2) [1999] TASSC 65 and of Tennent J in Hudson v Australian Food Group Pty Ltd (2006) 15 Tas R 322. When the Justices Act was originally enacted in 1959, it provided for a…
Brinkman, Norman and Fishpak Pty Ltd v Dix, Martin; Dix, Martin Stephen v Brinkman, Norman [1998] TASSC 135
Citation 5 (Para 14)

…n an exceptional case. As to which see Pulfer v Fletcher (above), and Wallington v Devries (above). On appeal to the Full Court in Brinkman v Dix [1998] TASSC 135, the point I am considering was not raised by a ground of the appeal, nor was it touched upon by the majority of the court. They merely determined that U…
Postiglione v the Queen [1997] HCA 26
Citation 6 (Para 14)

…been shown to be wrong by Lowe v R (1983) 154 CLR 606, which had been decided before Green v Fletcher and Webster v White , and by Postiglione v R (1997) 145 ALR 408, which had been decided since then. In Lowe v R , the court was unanimously of the view that marked disparity between sentences could be a ground of ap…
Webster v White [1991] TASSC 75
Citation 7 (Para 14)

…ould not show the required error. Three years later, on the hearing of a motion to review a finding that charges had been proved in Webster v White [1991] TASSC 75 (unreported 58/1991), an applicant sought to establish by further evidence that a magistrate had made an error of fact by way of an 'unwitting error' o…
The other decision of Cox J was Smart v Filz [1994] TASSC 123
Citation 8 (Para 14)

…e was unaware of the co-offender's earlier sentence and circumstances when he sentenced the applicant. The other decision of Cox J was Smart v Filz [1994] TASSC 123 (unreported B46/1994). The relevant ground of a motion to review a sentence also raised the question whether there was marked disparity between the app…
Brinkman v Dix [1997] TASSC 140
Citation 9 (Para 14)

…s of the statute defined its extent. There were however, two decisions of Cox J that were subsequently relied upon by Underwood J in Brinkman v Dix [1997] TASSC 140 (unreported 134/1997) in support of a contrary view. The first was Randall v Lowe unreported 59/1985 in which an applicant sought to have reviewed a se…

Legislation Cited

Justices Act 1959 (TAS) 107, 110, 110(2)
4 mentions (from Para 14)
Information Act 2009 (Qld) 44, 45
3 mentions (from Para 4)
Supreme Court Civil Procedure Act 1932 (TAS) 9
2 mentions (from Para 22)
Supreme Court Rules 2000 (TAS) 4
2 mentions (from Para 2)
Judicial Review Act 2000 (TAS)
1 mention (from Para 2)
Justices (Review) Rules 2004 (TAS)
1 mention (from Para 22)
Justices Rules 2003 (TAS)
1 mention
Sentencing Act 1997 (TAS) 7(f)
1 mention (from Para 2)