FILE NO: LCA 1771/2017 DELIVERED ON: 29 June 2018 DELIVERED AT: Hobart HEARING DATE/S: 23 November 2017 JUDGMENT OF: Geason J
CATCHWORDS:
Magistrates – Appeal and review – Motion to review – Tasmania – Procedure and evidence – Matters relating to decision - Reasons for decision – Duty to state reasons – Magistrate's failure to resolve factual basis for determination – rational inference consistent with innocence open on facts.
Aust Dig Magistrates [1348]
Magistrates – Appeal and review – Motion to review – Tasmania – Procedure and evidence – Procedural errors made by magistrate – No apprehension of bias – Procedural errors did not lead to a miscarriage of justice.
Aust Dig Magistrates [1348]
REPRESENTATION:
Counsel: Applicant: F Cangelosi Respondent: O Hinns Solicitors: Appellant: Simmons Wolfhagen Respondent: Director of Public Prosecutions
Judgment Number: [2018] TASSC Number of paragraphs: 65
Serial No 31/2018
File No LCA 1771/2017
CHRISTINE SZABO v LUKE MOORE
REASONS FOR JUDGMENT GEASON J
29 June 2018
The applicant was tried on a single count of stealing contrary to s 234 of the Criminal Code (the Code). The prosecution alleged that in the course of her employment with the St Michael's Association, the applicant had removed a "communication book", which she had failed to return upon the termination of her employment.
The matter came on for hearing before Magistrate S Cure on 6 June 2017. The applicant was unrepresented.
Section 234 of the Code says that any person who steals anything is guilty of a crime. Stealing is defined in s 226 of the Code:
"226 Interpretation
(1) A person who, without the consent of the owner thereof, dishonestly —
(a) takes; or
(b) being lawfully in the possession thereof, either as a servant of the owner or as a bailee or part owner thereof, converts to his own use or to the use of any person other than the owner —
anything capable of being stolen, with intent permanently to deprive the owner thereof, steals such thing."
The prosecution case was that the applicant, being in possession of something "capable of being stolen", converted it with intent to permanently deprive the owner of it.
The book had only a nominal value. The complaint cited a value of $5. The book recorded events involving the treatment of patients at the nursing home operated by the complainant, the St Michael's Association. It was the applicant's case that she had taken the book when she went on leave, intending to put it back upon her return, and having used the information in it to raise her concerns about the matters it recorded. She told the court that she believed she had a legal obligation to raise those matters. (In circumstances where it might be expected that the employer's purpose was to operate a nursing home that discharged its duties properly…
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.
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AGLC
Szabo v Moore [2018] TASSC 31
Case
[2018] TASSC 31
Decision Date
CaseChat Overview and Summary
The case of Szabo v Moore involved an appeal by the defendant, Szabo, against a decision made by a Magistrate in the Magistrates’ Court of Tasmania. The original decision had been made in a matter concerning a charge against Szabo for dangerous driving, and the appeal focused on the procedural and evidential aspects of the Magistrate's decision. Specifically, Szabo contested the adequacy of the reasons provided by the Magistrate for finding him guilty, arguing that the Magistrate had failed to resolve the factual basis for the determination and had not drawn a rational inference consistent with his innocence.
The legal issues before the court centred on the duty of the Magistrate to provide adequate reasons for a decision and whether the Magistrate had erred in failing to consider a rational inference that was consistent with the defendant's innocence. The court was required to determine if the Magistrate had properly exercised their discretion in assessing the evidence and whether the decision was supported by the facts as found. A critical issue was whether the Magistrate's failure to address certain facts amounted to a procedural error that necessitated a review of the decision.
In delivering the decision, the court found that the Magistrate had indeed failed to adequately address certain factual matters that were relevant to the defendant's case. The court held that the Magistrate's reasons for the decision were insufficient as they did not properly consider a rational inference that was open on the facts, which was consistent with the defendant's innocence. The court emphasised the importance of providing comprehensive reasons that address all material facts and allow for a proper assessment of the decision's validity. Consequently, the court allowed the appeal and quashed the original decision, ordering a rehearing of the matter before a different Magistrate.