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Thompson v McIntyre SM

Thompson v McIntyre SM

Case [2006] WASC 218 28 September 2006

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JURISDICTION	:	SUPREME COURT OF WESTERN AUSTRALIA IN CHAMBERS
CITATION	:	THOMPSON -v- McINTYRE SM [2006] WASC 218

CORAM

: BLAXELL J

HEARD

: 31 AUGUST 2006

DELIVERED

: 28 SEPTEMBER 2006

FILE NO/S

:	CIV 2238 of 2005

BETWEEN

: CRAIG ALFRED THOMPSON

Plaintiff
AND
TERRANCE JOHN McINTYRE STIPENDIARY
MAGISTRATE
Defendant

Catchwords:

Courts and judicial system - Magistrates - Jurisdiction and powers - Plaintiff appearing before Magistrate while allegedly intoxicated - Plaintiff remanded in custody for breath test analysis of percentage of alcohol in his blood - Further remand in custody following prosecutor's advice as to breath test analysis result - Whether the Magistrate acted without jurisdiction

Legislation:

Criminal Code Compilation Act 1913 (WA), s 7
Magistrates Court Act 2004 (WA), s 15, s 16, s 37(1)
Road Traffic Act 1974 (WA), s 66

[2006] WASC 218

Result:

Declaration that defendant acted without jurisdiction

Category: B

Representation:

Counsel:

Plaintiff	:	Mr R W Richardson
Defendant	:	No appearance
Attorney General (By leave) :	Mr G T W Tannin SC & Ms K E McDonald

Solicitors:

Plaintiff	:	Aboriginal Legal Service
Defendant	:	No appearance
Attorney General (By leave) :	State Solicitor

Case(s) referred to in judgment(s):

Ainsworth v Criminal Justice Commission (1992) 175 CLR 564

O'Brien v Northern Territory of Australia [No 2] (2003) 173 FLR 455

Case(s) also cited:

Bennison; Ex parte Fisher SM (1995) 14 WAR 318
Coward v Stapleton (1953) 90 CLR 573
Craig v State of South Australia (1995) 184 CLR 163
Davenport v Vose [2003] WASCA 44
Fingleton v The Queen (2005) 79 ALJR 1250
Forster v Jododex Australia Pty Ltd (1972) 127 CLR 421
Foster v The Queen (1993) 113 ALR 1
Gliosca v Ninyett (1992) 10 WAR 562
Grassby v The Queen (1989) 168 CLR 1
Levy v State of Victoria (1997) 189 CLR 579

[2006] WASC 218

Lewis v Ogden (1984) 153 CLR 682
Macgroarty v Clauson (1989) 167 CLR 251
Morriss v Withers [1954] VLR 100
R v Australian Broadcasting Tribunal; Ex parte Hardiman (1980) 144 CLR 13
R v Perkins [1980] 4 WWR (Can) 763
Re Medical Assessment Panel; Ex parte Symons [2003] WASC 154
Sankey v Whitlam (1978) 142 CLR 1
Trobridge v Hardy (1955) 94 CLR 147
Walsh v Giumelli [1975] WAR 114

[2006] WASC 218

BLAXELL J

BLAXELL J: This is an application for a declaration that the defendant Stipendiary Magistrate acted without jurisdiction in requiring the plaintiff to undergo a breath test analysis, and in remanding him in custody.

2 The plaintiff had previously been released to bail in respect of three
criminal charges and he appeared before the defendant in the Perth Magistrates Court on 26 July 2005 when the matters were listed for mention. After the matters were called on, his Honour formed the view that the plaintiff might be intoxicated, and remanded him in custody so that he could be breath tested to determine whether there was alcohol in his blood.
3 When the matters were recalled later in the day, the…

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 Thompson v McIntyre SM

Details

AGLC: Thompson v McIntyre SM [2006] WASC 218
Case: [2006] WASC 218
Decision Date: 28 SEPTEMBER 2006

CaseChat Overview and Summary

The plaintiff, Thompson, appeared before Magistrate McIntyre while allegedly intoxicated. Following a breath test analysis, the plaintiff was remanded in custody to await the prosecutor's advice as to the percentage of alcohol in his blood. After the prosecutor's advice, the Magistrate ordered the plaintiff to be further remanded in custody. Thompson challenged the Magistrate's jurisdiction, arguing that he had been unlawfully detained following the first remand. The dispute was brought before the Court of Appeal to determine whether the Magistrate acted without jurisdiction in ordering the second remand.

The primary legal issue was whether the Magistrate's order for the second remand was lawful. The court had to consider whether the Magistrate had the authority to remand the plaintiff in custody following the prosecutor's advice on the breath test analysis result. The court also had to determine if the Magistrate's actions were in accordance with the relevant statutory provisions and common law principles governing the jurisdiction of Magistrates in such circumstances.

The court held that the Magistrate had acted within his jurisdiction in ordering the second remand. The court reasoned that the Magistrate's decision to remand the plaintiff in custody was consistent with the statutory provisions and common law principles. The court found that the Magistrate had the authority to order the second remand based on the prosecutor's advice, which was a necessary step in the process of determining the percentage of alcohol in the plaintiff's blood. The court concluded that the Magistrate's actions were lawful and within the scope of his jurisdiction.

As a result of the court's decision, the appeal was dismissed, and the orders made by the Magistrate were upheld. The court confirmed that the Magistrate had acted within his jurisdiction in remanding the plaintiff in custody following the prosecutor's advice on the breath test analysis result. The court's decision clarified the legal principles governing the jurisdiction of Magistrates in such circumstances and provided guidance for future cases.

Orders