JUDICIAL REVIEW – Conviction for possession of heroin in Magistrates’ Court – Conviction upheld upon appeal to County Court – Application for judicial review, seeking orders in the nature of certiorari – Application dismissed – Appeal – Whether error of law on the face of the record – Whether reasons adequate – Credibility – Appeal dismissed.
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APPEARANCES:
Counsel
Solicitors
For the Appellant
Mr P G Nash QC
Access Law
For the First Respondent
Mr T Gyorffy SC
Mr C Hyland, Solicitor for Public Prosecutions
For the Second Respondent
No appearance
OSBORN JA:
On the afternoon of 5 January 2010 officers of Victoria Police attended at the appellant’s house in Tarneit with a search warrant. When the house was searched police found a clear ziplock plastic bag containing 0.1 grams of heroin on the top shelf of the walk-in wardrobe of the appellant’s bedroom.
No other items were found on the top shelf. The top shelf was ‘just over six feet’ above floor level. The plastic bag was only visible when one of the investigating police officers 176 cm in height stood on a chair. On the other hand, the plastic bag was located close to the front of the shelf so that someone could reach up and take it relatively easily if they knew where it was.
During the search the appellant told Detective Senior Constable Hyndman that there had been a New Year’s Eve party at his house. The detective observed unopened beer bottles in a bathtub consistent with the bathtub being used as an ice bucket for a party.
In a subsequent record of interview the appellant said that he was the only person living in the house at the time and that the heroin was found in his bedroom. He denied that the heroin belonged to him and said he did not know how it came to be there. He referred again to the New Year’s Eve party which had taken place. The record of interview set out the following course of questions and answers:
Question: What doesn’t belong to you?
Answer: The shit you found, that’s it that was in that room.
Question: Where would that have been found?
Answer: I don’t know you said you found it didn’t you? …
Question: Yeah it was found in the walk-in robe. Why would that be there?
Answer: I don’t know.
Question: Do you use drugs?
Answer: I don’t know, sometimes I use ice, sometimes smoke weed, that’s about it. … That doesn’t look like ice.
No fingerprints or DNA belonging to the appellant were found on the plastic…
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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Details
AGLC
TA v Thompson [2013] VSCA 344
Case
[2013] VSCA 344
Decision Date
CaseChat Overview and Summary
The applicant, TA, sought judicial review of a decision by a County Court judge to dismiss an application for a writ of certiorari to quash a conviction for heroin possession. The conviction originated in the Magistrates' Court and was subsequently upheld on appeal by the County Court. The central issues in the appeal were whether the County Court judge erred in law, and whether the reasons provided were adequate. The applicant argued that the County Court judge did not properly consider their credibility.
The Court of Appeal examined whether the County Court judge made an error of law in the appeal from the Magistrates’ Court. The appeal court found that the County Court judge did not misdirect themselves in law by failing to explicitly address the applicant's credibility. Instead, the appeal court held that the County Court judge implicitly considered the applicant's credibility in reaching their decision. Furthermore, the Court found that the reasons provided by the County Court judge were sufficient and adequately explained the basis for dismissing the application for certiorari.
Consequently, the appeal was dismissed. The Court of Appeal concluded that the County Court judge did not err in law, and that the reasons provided were adequate. The Court held that the applicant's argument regarding the consideration of credibility was without merit, as the County Court judge had implicitly taken the applicant's credibility into account. As a result, the application for judicial review was dismissed, and the conviction upheld.