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Tritton v Clarke

Tritton v Clarke

Case [2018] NSWCCA 31 7 March 2018

Appeal

Statutory Interpretation

Defence

Reasons for Judgment

Criminal Law

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Court of Criminal Appeal

Supreme Court

New South Wales

Summary available
Amendment notes

Medium Neutral Citation: Tritton v Clarke [2018] NSWCCA 31
Hearing dates: 19 February 2018
Decision date: 07 March 2018
Before: Hoeben CJ at CL at [1];
White JA at [2];
Fullerton J at [48]
Decision:
Refuse the applicant’s application for an extension of time to submit the questions contained in the case stated dated 28 August 2017 and filed on 7 September 2017.

Catchwords: CRIMINAL LAW – Criminal Appeal Act s 5B - stated case – s 35(2) Fisheries Management Act 1994 – defence available if person charged could not reasonably have known fish were illegally taken – whether questions submitted were questions of law – question as to whether defence requires consideration of surrounding circumstances did not arise – reasons for judgment not appended to stated case – findings of fact in stated case not open to challenge – stated case procedure not an avenue of appeal on a question of fact – consideration of stated case procedure – law reform
Legislation Cited: Criminal Appeal Act 1912 (NSW), s 5B
Fisheries Management Act 1994 (NSW), s 35(2)
Interpretation Act 1987 (NSW), s 35(2), (3)
Cases Cited: Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139
Brisbane City Council v Valuer-General (Qld) (1978) 140 CLR 41
Castlebar Holding v Riley [2005] NSWCCA 105
Collector of Customs v Agfa-Gevaert Ltd (1996) 186 CLR 389
Collins v State Rail Authority (NSW) (1986) 5 NSWLR 209
Currie v The Commissioners of Inland Revenue [1921] 2 KB 332
Dennis v Watt (1942) 43 SR (NSW) 32
Grajewski v Director of Public Prosecutions (NSW) [2017] NSWCCA 251
Hammond v The Queen (2013) 85 NSWLR 313; [2013] NSWCCA 93
Hayes v Federal Commissioner of Taxation (1956) 96 CLR 47; [1956] HCA 21
Industrial Equity Limited v Commissioner for Corporate Affairs [1990] VR 780
Lavorato v The Queen (2012) 82 NSWLR 568; [2012] NSWCCA 61
NSW Associated Blue-Metal Quarries Ltd v Federal Commissioner of Taxation (1956) 94 CLR 509
R v Bates [2007] NSWCCA 297; (2007) 68 ATR 265
R v Chan (1992) 28 NSWLR 421
R v Madden (1995) 85 A Crim R 367
R v Rigby (1956) 100 CLR 146
Sasterawan v Morris (2007) 69 NSWLR 547; [2007] NSWCCA 185
Thomas v The King (1937) 59 CLR 279
Category: Principal judgment
Parties: Joseph Glenn Tritton (Applicant)
Grahame John Clarke (Respondent)
Representation:
Counsel:
K Averre (Applicant)
R Rodger – Intervener Amicus (Attorney General)
Self-represented (Respondent)
Solicitors:
Hunt & Hunt (Applicant)

File Number(s): 2017/272006
Decision under appeal

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Date of Decision:

04 August 2016

Before:

Jeffreys DCJ

File Number(s):

2014/236536

Judgment

HOEBEN CJ at CL: I agree with White JA and the order which he proposes.
WHITE JA: On 28 August 2017 a judge of the District Court submitted two questions, both of which are said to be questions of law, for determination by this Court…

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 Tritton v Clarke

Details

AGLC: Tritton v Clarke [2018] NSWCCA 31
Case: [2018] NSWCCA 31
Decision Date: 07 March 2018

CaseChat Overview and Summary

In the matter of Tritton v Clarke, the court was tasked with considering a stated case appeal under the Criminal Appeal Act 1995. The appellant, Tritton, was convicted for a breach of section 35(2) of the Fisheries Management Act 1994. The primary dispute centred on the availability of a defence under the statute, specifically whether Tritton could claim he did not know the fish were illegally taken. This matter was brought before the Court of Appeal to determine whether the questions submitted by Tritton constituted questions of law suitable for the stated case procedure, and if the facts as presented in the stated case were correctly framed.

The court was required to decide whether the defence outlined in section 35(2) of the Fisheries Management Act 1994 was contingent upon a consideration of the surrounding circumstances, as well as whether the reasons for judgment were properly appended to the stated case. Additionally, the court needed to clarify whether the findings of fact in the stated case could be challenged, and if the stated case procedure could be used as a vehicle for appealing questions of fact. The court had to balance the procedural aspects of the stated case with the substantive legal questions it raised.

In its reasoning, the court found that the questions submitted by Tritton did not pertain to questions of law but rather involved factual determinations. The court held that the availability of the defence under section 35(2) did not require an examination of surrounding circumstances as a matter of law. Furthermore, the court noted that the reasons for judgment were not appended to the stated case, which was a procedural error. However, the court emphasised that findings of fact in a stated case were not open to challenge in this context. The court concluded that the stated case procedure was not an appropriate avenue for appealing questions of fact, and thus, the appeal was dismissed.

The court did not issue any final orders as the appeal was dismissed on procedural grounds. The decision highlights the importance of adhering to the procedural requirements when submitting a stated case, particularly concerning the inclusion of reasons for judgment and the distinction between questions of law and fact.

Orders