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Traynor v McCullough

Traynor v McCullough

Case [2011] TASSC 41 10 August 2011

Judicial Review

Natural Justice & Procedural Fairness

Error or Mistake

Remedy

Administrative Law

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[2011] TASSC 41

COURT: SUPREME COURT OF TASMANIA

CITATION: Traynor v McCullough [2011] TASSC 41

PARTIES:  TRAYNOR, David Joseph
  v
  McCULLOUGH, Julie

FILE NO/S:  200/2011
DELIVERED ON:  10 August 2011
DELIVERED AT:  Hobart
HEARING DATE:  25 July 2011
JUDGMENT OF:  Crawford CJ

CATCHWORDS:

Magistrates – Appeals and review – Tasmania – Motion to review – When remedy available – Error or mistake on the part of the justices - Whether error must appear from the materials before the magistrate – Whether further evidence may be adduced to show "unwitting error".

Justices Act 1959 (Tas), ss107(4)(a), 110(2).
Gower v Roffe 38/1966; Pulfer v Fletcher 67/1966; Cleaver v Powell [1979] Tas R 134, Wallington v Devries [1979] Tas R (NC 11), (42/1979); Green v Fletcher [1988] Tas R 59; Webster v White [1991] TASSC 75 (58/1991); Turner v Driver [2005] TASSC 85, followed.
Brinkman v Dix [1997] TASSC 140 (134/1997); Brinkman v Dix (No 2) [1999] TASSC 65; Hudson v Australian Food Group Pty Ltd (2006) 15 Tas R 322, not followed.
Aust Dig Magistrates [270]

REPRESENTATION:

Counsel:
             Applicant:  B R McTaggart
             Respondent:  S Nicholson
Solicitors:
             Applicant:  Ogilvie Jennings
             Respondent:  Director of Public Prosecutions

Judgment Number: [2011] TASSC 41
Number of paragraphs: 55

Serial No 41/2011
File No 200/2011

DAVID JOSEPH TRAYNOR v JULIE McCULLOUGH

REASONS FOR JUDGMENT CRAWFORD CJ

10 August 2011

A charge against the applicant of possessing, between 1 March 2009 and 29 June 2009, child exploitation material against the Classification (Publications, Films and Computer Games) Act 1995, s74A, was found proved by the Chief Magistrate.

Under the Sentencing Act 1997, s7(f), a conviction was recorded and the proceedings were adjourned for two years "on condition that the defendant enters into an undertaking to be of good behaviour and commit no offence under the relevant legislation during that time, and he will appear before the Court if called upon during that time". Under the Community Protection (Offender Reporting) Act 2005, s6(1), an order was made directing that the Registrar cause the applicant's name to be placed on the register under the Act and that he comply with its reporting obligations for two years.

The applicant moved this Court to review the orders under the Justices Act 1959, PtXI. There were three grounds in the notice to review. The first was that the recording of the conviction was a manifestly excessive response in all the circumstances of the case. The second was that the magistrate erred in failing to be satisfied under the Community Protection (Offender Reporting) Act, s6(1), that the applicant did not pose a risk of committing a reportable offence in the future. The third was that the magistrate erred in making the reporting order "as the court was deprived of relevant and cogent evidence as to the offending material's public availability which led to a miscarriage of justice". For reasons I now give, I have concluded that the first two grounds have been established.

Evidence at the hearing

The applicant possessed a laptop computer.…

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 Traynor v McCullough

Details

AGLC: Traynor v McCullough [2011] TASSC 41
Case: [2011] TASSC 41
Decision Date: 10 August 2011

CaseChat Overview and Summary

In the Magistrates Court of Tasmania, Traynor filed a motion to review a decision made by McCullough. The dispute involved a matter of error or mistake on the part of the justices, and Traynor sought a review under the relevant statutory provisions. The legal issue before the court was whether a remedy through a motion to review was available when an error or mistake had occurred and whether such an error must appear from the materials before the magistrate or if further evidence could be adduced to show an "unwitting error".

The court examined the statutory framework governing the motion to review process and determined that a remedy could be available if an error or mistake had indeed occurred. However, the court emphasised that the error must be apparent from the materials before the magistrate at the time of the decision. The court found that further evidence could not be adduced to show an "unwitting error" and that the motion to review would not be granted unless the error was evident from the materials before the magistrate.

Consequently, the court dismissed Traynor's motion to review. The court held that the error or mistake must be evident from the materials before the magistrate and that further evidence could not be adduced to establish an "unwitting error". The motion to review was therefore not a suitable remedy in this instance, and Traynor's application was dismissed. The court's decision underscores the importance of ensuring that any error or mistake is apparent from the materials before the magistrate at the time of the decision for a motion to review to be granted.

Orders