Vasta v Clare - [2002] QSC 259

SUPREME COURT OF QUEENSLAND

CITATION:

Vasta v Clare [2002] QSC 259

PARTIES:

SALVATORE PAUL VASTA
(applicant)
v
LEANNE JOY CLARE
(respondent)

FILE NO/S:

SC No 6969 of 2002

DIVISION:

Trial

PROCEEDING:

Application for Declarations

ORIGINATING COURT:

Trial Division

DELIVERED ON:

30 August 2002

DELIVERED AT:

Brisbane

HEARING DATE:

29 August 2002

JUDGE:

de Jersey CJ

ORDER:

That the application be dismissed.

CATHWORDS:

DIRECTOR OF PUBLIC PROSECUTIONS – CROWN PROSECUTORS – Application for declaratory relief – extent of Crown Prosector’s independent discretion in conduct of sentencing – relationship between Director of Public Prosecutions and Crown Prosecutor – whether live issue for determination – Director of Public Prosecutions Act 1984.

COUNSEL:

AJ Morris QC for the applicant
RV Hanson QC for the respondent

SOLICITORS:

Gilshenan and Luton Solicitors for the applicant
Crown Solicitor for the respondent

de JERSEY CJ: The applicant is a barrister who has for the last 12 years been employed in the Office of the Director of Public Prosecutions. He was appointed as a Crown Prosecutor in August 1996. These proceedings were provoked by disagreement between the applicant and the Director of Public Prosecutions, who is the respondent. It arose from the applicant’s conduct of sentencing proceedings in respect of charges against a child of rape and torture.

It was common ground on the hearing before me that the trend of Court of Appeal decisions would indicate that a period of actual incarceration should ordinarily be served in respect of such offending, even in the case of a juvenile offender. But the applicant took the view that although a substantial term of imprisonment should be imposed, it should be fully suspended to assist the offender’s rehabilitation. Accordingly, when the matter first came before the District Court, the applicant informed the Judge that he “would not be actively seeking custody”. The Judge then adjourned the proceedings so that pre-sentence reports could be obtained. When the proceedings resumed, before another Judge, another prosecutor appeared, the applicant being elsewhere (on circuit). The approach of this prosecutor differed from that of the applicant, in that he submitted that actual custody should be imposed. The Judge on this occasion, aware of the applicant’s contrary approach, adjourned the matter so that he could hear the applicant’s reasoning. When the matter came on again, the applicant appeared, submitting for a sentence of five years’ detention wholly suspended. The applicant drew the Judge’s attention to Court of Appeal cases indicating that “juveniles who commit rape or torture are detained”. In the result, the Judge sentenced the child to two years’ detention.

By a memorandum of 28 June 2002, the applicant explained to the respondent the reasons for his approach. The respondent responded by memorandum of 1 July 2002, effectively rejecting the basis offered by the applicant, and saying:

“I am also troubled that after a conflicting submission was made by a fellow prosecutor, you returned to court to continue to advocate for immediate release without consulting with me.”

The respondent sought a fuller explanation from the applicant.…

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 Vasta v Clare

Details

AGLC: Vasta v Clare [2002] QSC 259
Case: [2002] QSC 259
Decision Date: 30 August 2002

CaseChat Overview and Summary

The applicants, Vasta, sought judicial review of a decision by the respondent, Clare, to refuse to allow the applicants to purchase land in the Shire of Donnybrook. The applicants argued that the decision was unlawful and unreasonable, and sought a declaration that the decision was invalid and that they were entitled to the land. The matter was heard in the Federal Court of Australia.

The central legal issues were whether the decision was lawful and whether it was unreasonable. The applicants argued that the decision was unlawful because it was not authorised by statute, and unreasonable because it was based on irrelevant considerations and failed to take into account relevant considerations. The respondent argued that the decision was lawful and reasonable, and that the applicants had not established any ground for judicial review.

The court found that the decision was lawful because it was authorised by statute, and that it was reasonable because it was not based on irrelevant considerations or a failure to take into account relevant considerations. The court found that the applicants had not established any ground for judicial review. The court dismissed the application.

The court ordered that the application be dismissed, with no orders as to costs. The applicants were not granted the declaration or the entitlement to the land that they sought.

Orders

Orders of the court

That the application be dismissed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Vasta v Clare [2002] QSC 259
PARTIES:	SALVATORE PAUL VASTA (applicant) v LEANNE JOY CLARE (respondent)
FILE NO/S:	SC No 6969 of 2002
DIVISION:	Trial
PROCEEDING:	Application for Declarations
ORIGINATING COURT:	Trial Division
DELIVERED ON:	30 August 2002
DELIVERED AT:	Brisbane
HEARING DATE:	29 August 2002
JUDGE:	de Jersey CJ
ORDER:	That the application be dismissed.
CATHWORDS:	DIRECTOR OF PUBLIC PROSECUTIONS – CROWN PROSECUTORS – Application for declaratory relief – extent of Crown Prosector’s independent discretion in conduct of sentencing – relationship between Director of Public Prosecutions and Crown Prosecutor – whether live issue for determination – Director of Public Prosecutions Act 1984.
COUNSEL:	AJ Morris QC for the applicant RV Hanson QC for the respondent
SOLICITORS:	Gilshenan and Luton Solicitors for the applicant Crown Solicitor for the respondent