JUDGE:	WHELAN J
WHERE HELD:	Melbourne
DATE OF HEARING:	17 September 2012
DATE OF JUDGMENT:	28 September 2012
CASE MAY BE CITED AS:	Ta v Thompson & Anor
MEDIUM NEUTRAL CITATION:	[2012] VSC 446

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ADMINISTRATIVE LAW – CRIMINAL LAW – Judicial review of decision on appeal to County Court from Magistrates’ Court – Whether failure to provide adequate reasons.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr D Perkins	Access Law Lawyers
For the Defendant	Mr T Gyorffy SC	Victorian Government Solicitor’s Office

HIS HONOUR:

Introduction

On 5 January 2010 at approximately 2.40pm, a group of police attended the plaintiff, Mr Ta’s, house in Tarneit and executed a search warrant under the Drugs, Poisons and Controlled Substances Act (‘the Drugs Act‘). In the course of that search, a number of items were found. One item which was found was a clear zip-lock plastic bag containing a small quantity (.1 gram) of heroin. This item was found in the plaintiff’s bedroom on the top shelf of his walk-in wardrobe. The plaintiff kept his clothes in that walk-in wardrobe. The policeman who found the plastic bag located it on the top shelf after standing on a chair inside the walk-in robe. There was nothing else on that shelf. The zip-lock plastic bag was not visible from where the police officer was standing before he got on the chair, but a person who knew it was there could have reached it while standing in the walk-in wardrobe.

The plaintiff was charged with seven offences. The offence relevant to this proceeding is the offence of possession of a drug of dependence, namely heroin, under s 73 of the Drugs Act. The charges came on for hearing at the Sunshine Magistrates’ Court in September 2011. Mr Ta pleaded guilty to some of the charges, and others were withdrawn. He pleaded not guilty to the charge of possessing heroin. He was found guilty of that charge. On the charges to which he pleaded guilty and was found guilty, he was fined an aggregate sum of $1200 without conviction.

Mr Ta then appealed to the County Court under Part 6.1 of the Criminal Procedure Act 2009 (‘the Criminal Procedure Act‘). The appeal came on for hearing before a Judge in the County Court on 15 March 2012. Pursuant to s 256 of the Criminal Procedure Act, the appeal was conducted as a re-hearing and the Judge commenced by formally setting aside the orders made in the Magistrates’ Court at Sunshine. After hearing evidence and brief submissions, the appeal was dismissed and the charge was found proven. The same penalty was imposed. In this proceeding Mr Ta seeks to have the decision on his appeal quashed.

Relevant legislation

Under s 73 of the Drugs Act, a…

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 Ta v Thompson

Details

AGLC: Ta v Thompson [2012] VSC 446
Case: [2012] VSC 446
Decision Date: 28 September 2012

CaseChat Overview and Summary

In the case of Ta v Thompson, the respondent, Thompson, sought judicial review of a decision made by Ta, who was acting in an administrative capacity. The dispute arose from a decision made on appeal to the County Court from the Magistrates’ Court. The primary issue before the court was whether the decision-maker, Ta, had provided adequate reasons for the decision in question. The respondent argued that the reasons provided by Ta were insufficient to justify the outcome, leading to a challenge on the grounds of procedural fairness.

The court examined the nature and extent of the reasons provided by Ta in light of the principles of administrative law. It was necessary to determine whether the reasons given were sufficient to allow the respondent to understand the basis of the decision and to enable effective judicial review. The court considered whether the reasons were adequate to demonstrate that Ta had considered all relevant factors and exercised the discretion lawfully. This involved an analysis of the content of the reasons provided and their adequacy in the context of the particular decision-making process.

After a thorough review of the decision and the reasons provided, the court found that Ta had failed to provide adequate reasons for the decision. The reasons were deemed insufficient to meet the standards of procedural fairness and to enable effective judicial review. Consequently, the court allowed the application for judicial review and quashed the decision made by Ta. The matter was remitted back to the decision-maker for reconsideration, with directions to provide comprehensive and adequate reasons for the decision.

Orders