Taylor v Bamber - [2011] NTSC 36

Taylor v Bamber & Anor [2011] NTSC 36
PARTIES:JUAN JEFFERY TAYLOR

v
DAVID BAMBER SM
AND:
LINDSAY WESTPHAL

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION:  SUPREME COURT OF THE NORTHERN TERRITORY EXERCISING TERRITORY JURISDICTION
FILE NO:10 of 2010 (21010725)
DELIVERED:  12 May 2011
HEARING DATES:  16 March 2011
JUDGMENT OF:  BARR J
CATCHWORDS:

CRIMINAL LAW – Jurisdiction – Court of Summary Jurisdiction – minor indictable offences – whether Court had jurisdiction under s 121A Justices Act to hear and determine charges – mandatory conditions precedent to Court’s jurisdiction – consent of the prosecutor – whether consent can be implied or must be express – finding that consent must be express
CRIMINAL LAW – Jurisdiction – Court of Summary Jurisdiction – minor offences – jurisdiction under s 120 Justices Act to deal with matter as a minor offence unconditional as to the consent of the parties – whether facts relating to second charge were inextricably linked with the offending conduct constituting the first and third charges – held no basis for mandamus to compel magistrate to deal with second charge separately

Justices Act s 67, s 120, s 121A, s 121A(1)(d)(e) and (f), s 121(1AA), s 122A
Mental Health and Related Services Act (NT) s 23(3)(a), s 77, s 77(2), s 77(3), s 77(4)
Public Health Act s 5(1)(b)
Birkeland-Corro v Tudor Stack [2005] NTSC 23; Graham v Atkins [2006] NTSC 51, considered
The Queen v Australian Broadcasting Tribunal; Ex parte Hardiman (1980) 144 CLR 1; McKirdy v McCosker & Anor [2002] NSWSC 197; Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705, referred to
REPRESENTATION:
Counsel:
Plaintiff:M O’Reilly
First and Second Defendants:      S Robson
Solicitors:
Plaintiff:Central Australian Aboriginal Legal Aid Service
First and Second Defendants:      Office of the Director of Public Prosecutions
Judgment category classification:    B
Judgment ID Number:  Bar1106
Number of pages:  13

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
Taylor v Bamber & Anor [2011] NTSC 36

No 10 of 2010 (21010725)
BETWEEN:

JUAN JEFFERY TAYLOR

Plaintiff

AND:

DAVID BAMBER SM

First Defendant

AND:

LINDSAY WESTPHAL
Second Defendant

CORAM: BARR J
REASONS FOR JUDGMENT

(Delivered 12 May 2011)

Introduction

The plaintiff seeks an order in the nature of mandamus to require the first defendant to proceed in accordance with s 77(4) of the Mental Health and Related Services Act (NT) and dismiss three charges laid against the plaintiff on information. The second defendant is the informant and the first defendant is a stipendiary magistrate sitting as the Court of Summary Jurisdiction at Alice Springs.
The second defendant opposes the grant of the orders sought by the plaintiff. The first defendant submits to the Court’s jurisdiction, but takes no active part in the proceedings, as is usual in matters of this kind.[1]
The first charge against the plaintiff was that on 28 March 2010 at Alice Springs he unlawfully entered a building, the alleged circumstances of aggravation being that the building…

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 Taylor v Bamber

Details

AGLC: Taylor v Bamber & Anor [2011] NTSC 36
Case: [2011] NTSC 36
Decision Date: 12/05/2011

CaseChat Overview and Summary

The case of Taylor v Bamber involved the plaintiff seeking a stay of proceedings against charges laid against them on information, which included three separate charges. The plaintiff argued that certain provisions of the Mental Health and Related Services Act should apply to the proceedings, particularly in relation to the second charge. The Court was tasked with determining the applicability of these provisions and the validity of the plaintiff's request for a stay of proceedings.

The central legal issue before the Court was whether Section 77 of the Mental Health and Related Services Act applied to the plaintiff's proceedings, specifically concerning the second of the three charges. The Court also needed to decide whether the second charge should be considered separately or in conjunction with the first and third charges, and whether the Court's discretion under Section 122A of the Justices Act was exercised appropriately. Furthermore, the Court had to consider whether an order in the nature of mandamus was warranted to compel the prosecutor to dismiss any of the charges.

In its reasoning, the Court found that the facts of the second charge were inextricably linked with the first and third charges, and therefore, it was illogical to deal with the second charge separately. As a result, the Court declined to exercise its jurisdiction over the second charge under Section 120 of the Justices Act, in accordance with Section 122A. Consequently, Section 77 of the Mental Health and Related Services Act ceased to apply to the plaintiff in the context of the first and third charges. The Court concluded that there was no basis in law for an order in the nature of mandamus to compel the prosecutor to dismiss any of the charges. The plaintiff's request for a permanent stay of proceedings was abandoned during the hearing. Therefore, the Court determined that the plaintiff's originating motion should be dismissed.

The Court will hear the parties on final orders, including the issue of costs.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

In the present case, the Court accepted the prosecutor’s submission that the facts relating to the second charge were inextricably linked with the offending conduct constituting the first and third charges. The Court rightly concluded that it would be illogical for the second charge to be dealt with separately from the other two charges and hence (pursuant to s 122A Justices Act) declined to further exercise jurisdiction under s 120 Justices Act. In my opinion there was no error in the exercise by the Court of its discretion under s 122A. Since the Court was no longer exercising summary jurisdiction with respect to the second charge, s 77 Mental Health and Related Services Act ceased to apply. Conclusion I conclude that s 77 Mental Health and Related Services Act did not apply to the plaintiff in proceedings relating to the first and third of the three charges laid against the plaintiff on information. I find that s 77 Mental Health and Related Services Act did apply to the plaintiff in proceedings relating to the second of the three charges laid against the plaintiff on information, but that s 77 ceased to apply to him on 12 November 2010 upon the first defendant making the order referred to in par [15] above. There is no basis in law for an order in the nature of mandamus to compel the first defendant to dismiss any of the three charges laid against the plaintiff on information. The plaintiff’s originating motion sought a permanent stay of proceedings by way of alternative or additional relief to an order in the nature of mandamus, but the plaintiff’s counsel abandoned that part of the application at the hearing. The plaintiff’s originating motion should be dismissed. I will hear the parties as to final orders including in relation to the issue of costs.

Ratio Decidendi

Legal Principle Established

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