Ts v UG - [2023] ACTSC 389

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	TS v UG
Citation:	[2023] ACTSC 389
Hearing Date:	13 December 2023
Decision Date:	13 December 2023
Before:	Mossop J
Decision:	1. Appeal allowed. 2. Set aside the conviction recorded and good behaviour order made on 1 June 2023 and remit the proceedings to the Magistrates Court for hearing and determination according to law.
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Appeal – appeal against conviction – third ground of appeal alleged apprehended bias by magistrate – where magistrate made adverse credit findings against appellant in separate proceedings – appellant raised issue of bias at time of initial hearing – magistrate refused to recuse herself – ground of appeal conceded by respondent – matter remitted to the Magistrates Court to be determined according to law
Legislation Cited:	Crimes Act 1900 (ACT), s 35 Family Violence Act 2016 (ACT), s 149
Cases Cited:	Livesey v New South Wales Bar Association (1983) 151 CLR 288
Parties:	TS ( Appellant) UG ( Respondent)
Representation:	Counsel Self-represented ( Appellant) K McCann ( Respondent)
Solicitors Self-represented ( Appellant) Director of Public Prosecutions ( Respondent)
File Number:	SCA 38 of 2023
Decision Under Appeal:	[redacted]

MOSSOP J

Introduction

1․These proceedings are an appeal against a finding of guilt made by a magistrate on 6 December 2022. The appellant was found guilty of the offence of stalking, contrary to s 35 of the Crimes Act 1900 (ACT). The appellant was sentenced on 1 June 2023, and placed on a good behaviour order for a period of three years.
2․(The published version of these reasons has been redacted and names anonymised to comply with s 149 of the Family Violence Act 2016 (ACT)).

Overview of the case

3․By way of brief summary, the factual circumstances were as follows. The appellant was estranged from his adult son. Father and son had been estranged for a number of years. The son had day-to-day care of the former family dog, D. D had a health scare. The son was initially told that D may die. He sent an email to his father indicating that she did not have long to live and saying that he could drop her off if the appellant wished to see her. Getting no response to that, he passed a message via his father’s sister to that effect, saying that he was agreeable to allowing the appellant to see the dog.
4․The appellant rang his son and his son agreed to take D to the appellant for a visit. It turned out that D was not about to die. She just had a temporary gastrointestinal problem. She was returned to the son’s care. Notwithstanding being informed that D was not about to die and being told that his son would arrange to let the appellant see the dog, the appellant engaged in what the magistrate described as “a barrage of unwelcome attempts at contact with [his son]”. This occurred between 17 and 23 October 2021. 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 Ts v UG

Details

AGLC: Ts v UG [2023] ACTSC 389
Case: [2023] ACTSC 389
Decision Date: 13 December 2023

CaseChat Overview and Summary

In this case, the appellant, Ts, sought to appeal against a conviction and associated good behaviour order imposed by the Magistrates Court. The proceedings were conducted before a magistrate, referred to as UG, and the appeal was heard by a higher court. The primary issue before the appellate court was the alleged bias of the magistrate in the original proceedings. Specifically, the appellant claimed that the magistrate was biased due to prior adverse credit findings against the appellant in separate proceedings. The appellant had raised the issue of bias at the time of the initial hearing, but the magistrate refused to recuse herself.

The court was required to determine whether the alleged bias by the magistrate was sufficient to vitiate the proceedings and warrant the setting aside of the conviction. The respondent conceded the ground of appeal, acknowledging that the magistrate's refusal to recuse herself, despite the appellant's valid concerns, was an error. The court noted that a fair trial is a fundamental right and that any perceived or actual bias could undermine the integrity of the judicial process.

The appellate court allowed the appeal based on the conceded ground of appeal. The conviction and good behaviour order made by the Magistrates Court were set aside, and the matter was remitted to the Magistrates Court. The court emphasised the importance of ensuring that proceedings are conducted by an impartial magistrate to uphold the principles of justice. The final orders of the court were to allow the appeal, set aside the conviction and good behaviour order, and remit the proceedings to the Magistrates Court for a hearing and determination according to law.

Orders

Orders of the court

1. Appeal allowed.

2. Set aside the conviction recorded and good behaviour order made on 1 June 2023 and remit the proceedings to the Magistrates Court for hearing and determination according to law.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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