Criminal Procedure (S.A.)—Summary jurisdiction—Minor indictable offence triable summarily—Power of court of summary jurisdiction to proceed in absence of appearance by or on behalf of defendant—Justices Act 1921 (S.A.), ss. 64, 106(1), 122.

Decisions

MASON, WILSON AND DAWSON JJ.: The respondent laid an information against the appellant, charging that on 4 April 1985 at Lower Mitcham in South Australia he entered a dwelling-house with intent to steal therein, contrary to s.171 of the Criminal Law Consolidation Act 1935 (S.A.), as amended. The offence is a minor indictable offence as defined in s.4 of the Justices Act 1921 (S.A.), as amended ("the Act"). It could therefore be heard and determined, in a summary way, by a court of summary jurisdiction in accordance with Division II of Part V of the Act.

2. The appellant was brought before a court of summary jurisdiction in Adelaide. There were several remands, leading up to the fixing of 23 September 1985 as the date on which the matter would be heard. The appellant was released on bail to appear on that date. When the matter was called on 23 September the appellant failed to answer to his bail. However, counsel appeared on his behalf. The prosecutor requested leave to proceed "ex parte" in the absence of the appellant and the special magistrate acquiesced in that course. There was no objection by counsel for the appellant. It appears from the transcript of the proceedings that the identity of the alleged offender was in issue but, as Bollen J. observed in the Full Court, it would be speculative to suppose that the appellant deliberately stayed away from the hearing so as to avoid the risk of a positive identification by the principal witness for the prosecution. The case proceeded. Witnesses for the prosecution were cross-examined by counsel for the appellant. At the close of the prosecution's case counsel submitted that as a matter of law there was no case to answer. That submission being overruled, counsel then led evidence for the defence and addressed the court. At the conclusion of addresses the magistrate indicated that he would deliver his decision on the following morning and adjourned the proceedings. The next morning the appellant was present, with a different counsel. His earlier counsel was given leave to withdraw. No application of any kind was made by or on behalf of the appellant. The magistrate convicted the appellant and remanded him in custody to 2 October 1985 for the fixing of penalty. On that day he sentenced him to imprisonment for six months.

3. The appellant appealed to the Supreme Court of South Australia and the matter came before Jacobs J. Before proceeding to deal with the merits of the appeal his Honour reserved for the consideration of the Full Court, pursuant to s.49 of the Supreme Court Act 1935 (S.A.), as amended, the following…

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 Tassell v Hayes

Details

AGLC: Tassell v Hayes [1987] HCA 21
Case: [1987] HCA 21
Decision Date: 5 June 1987

CaseChat Overview and Summary

The High Court of Australia considered an appeal from the Supreme Court of New South Wales in *Tassell v Hayes*. The dispute concerned the interpretation and application of the *Testator's Family Maintenance and Guardianship of Infants Act 1916* (NSW) (the Act), specifically in relation to a claim for provision from the estate of the deceased, Mr Hayes. The appellant, Mrs Tassell, was the deceased's daughter and sought to enforce an order made in her favour under the Act. The respondent, Mr Hayes, was the executor of the deceased's estate.

The central legal issue before the High Court was whether the Supreme Court had the power to make an order for provision from the deceased's estate in favour of Mrs Tassell, notwithstanding that the deceased had died domiciled in Victoria and that the primary administration of his estate was taking place in Victoria. The court was required to determine the territorial limits of the operation of the NSW Act and whether it could apply to an estate administered outside of New South Wales.

The High Court held that the NSW Act, being legislation of a State, had no operation beyond the territorial limits of New South Wales. Therefore, the Supreme Court of New South Wales did not have jurisdiction to make an order for provision from the estate of a person who died domiciled in Victoria, even if some assets of the estate were located within New South Wales. The court reasoned that the Act was concerned with the administration of estates and the distribution of property within the State, and that its provisions could not extend to dictate the disposition of an estate administered under the laws of another jurisdiction.

The High Court allowed the appeal and set aside the order made by the Supreme Court of New South Wales.

Orders