Traynor v McCullough [2011] TASSC 41, followed.

Judgment Number: [2018] TASSC 11

1. This motion to review relates to a sentence imposed by Magistrate R Marron on the applicant on 11 September 2017. On 5 March 2018, I dismissed the motion. These are my reasons for doing so.
2. The applicant had been charged on two separate complaints with a total of 36 offences. The charges variously alleged acts of dishonestly acquiring a financial advantage and computer-related fraud. The alleged victim of all of the offences was David John King. The material provided to me reveals that Mr King, some years ago, had been involved in a serious accident which had left him with an acquired brain injury. The applicant had a friendship with Mr King for many years. The gravamen of the allegations against the applicant was that she had dishonestly used Mr King's debit and/or credit cards to either obtain money or pay for her own expenses, including those incurred at various retail outlets. When confronted by police in relation to these allegations, the applicant had conceded that she had used Mr King's cards from time to time, but claimed to have done so with his agreement.
3. On 18 July 2017, the applicant entered a plea of guilty to 5 of the 36 charges. After the pleas had been entered, the prosecution tendered no evidence in respect of the balance of the charges, and they were dismissed by the magistrate. The applicant was represented by counsel, Mr Bearman, throughout the proceedings, including this hearing. I infer that an agreement had been reached between the defence and the prosecution that was in accordance with the outcome adopted by each party on that day.
4. The magistrate heard the prosecution facts and a plea in mitigation on 5 September 2017. The thrust of the plea in mitigation presented by Mr Bearman was that the applicant was a person of prior good character. She had no prior criminal history, apart from some traffic matters. There was no history of dishonest conduct, and she held a position of responsible employment with the Tasmanian Government.
5. The magistrate sentenced the applicant on 11 September 2017. After discussing in some detail the circumstances of the offending, his Honour indicated that he intended to record a conviction in respect of all offences, and deal with the matter pursuant to s 7(f) of the Sentencing Act 1997 by adjourning the proceedings for a period of two years on the applicant's undertaking to be of good behaviour.
6. The applicant's complaint to this Court, as reflected in the grounds of review contained in the notice, and her submissions to me, relates to the fact that Mr King had died well before the pleas of guilty were entered before the magistrate. Although the grounds were inelegantly drafted by the self-represented applicant, it became apparent that her point was that she had always maintained her innocence with respect to all charges, and had only agreed to plead guilty to the 5 charges because, on the advice of her lawyer, she believed that if she pleaded not guilty, the proceedings would take considerable time to resolve, and that would affect her employment. The effect of her submissions was that the course which she took seemed to be the least damaging option from her perspective. She submitted that when she agreed to the arrangement pursuant to which the pleas were entered, she was not aware that Mr King had died some considerable time before. She asserted that this information was only provided to her counsel after the pleas were entered and, in fact, just before the plea in mitigation took place on 5 September. She asserted that, had she known this, she would not have entered into the agreement and entered the pleas, because there would have been no reason for her to do so. She would simply have maintained her innocence. It was apparent that the prosecution case would have depended on the evidence of the late complainant.
7. Despite what the applicant now says in relation to her guilt in relation to the charges to which she pleaded guilty, all of the submissions and information presented to the magistrate confirmed that her pleas of guilty were an unequivocal admission of her guilt in respect of the relevant 5 offences. During the course of the plea presented by the applicant's counsel on 5 September, the magistrate interrupts to raise the point that the plea seems to be inconsistent with a statement made by the applicant to police during her police interview. The statement was to the effect that she had only used the complainant's card with his consent. At this point in the plea, the following exchange occurs:

The defendant does not dispute that she used the complainant's card on occasion but it was only with his consent.

Now, quite clearly on the plea - I just want to be absolutely clear about this, your - your client is pleading guilty to charges involving stealing from the complainant - I just want to be absolutely clear about this because otherwise we're dodging around responsibility.

MR BEARMAN: We're not dodging around responsibility, sir, clearly the groceries and the shoes were obtained without his consent, and the explanation was that after the friendship had broken down she'd been concerned about the likelihood of being recompensed for the - the wood-heater.

HIS HONOUR: Why did she tell the police something different then?

MR BEARMAN: Well, that's a good question. It was a lengthy interview.

MR BEARMAN: But it wouldn't be unusual or the first time that what someone says at interview is not necessarily the case.

1. A little later in the plea, his Honour again returns to this issue:

"HIS HONOUR: Yeah, well see, I don't have any issue at all with your client's help and assistance but I do have an issue with her explaining away and seeking to do it by reference a claim of right in relation to the money, and I'm not getting a sense that your client is still accepting the fact that she stole from this person. Now look, I'm just getting excuses and I'm - I want to hear the record of interview so I can understand why it is that she didn't bring that to the attention of police because we've got reference here to a two thousand dollar power bill - now, we've got reference not previously mentioned to anybody about some heater that she was owed - owed money for, and random payments.

MR BEARMAN: Well not so much an excuse, sir, providing an explanation and consistent with her plea of guilty she accepts and acknowledges the charge and provides an explanation for the offending."

1. His Honour then adjourned the proceeding to 11 September 2017, when he proceeded to sentence. It is apparent from comments on that day that he had listened to the record of interview during the intervening period.
2. The power of this Court to entertain a notice to review emanates from and is confined by the provisions of s 107 of the Justices Act 1959. Section 107(4) provides that the grounds of a notice to review shall allege (a) an error or mistake on the part of the magistrate on a question of fact and/or law; or (b) that the magistrate had no jurisdiction to make the relevant order.
3. In Traynor v McCullough [2011] TASSC 41, Crawford CJ reviewed the decisions of several single judges of this Court relating to the limitations imposed by that provision on the jurisdiction of this Court when considering a motion to review. His Honour concluded that, apart from the question of jurisdiction, the Court is limited to considering an error of fact and/or law which is established on the material which is presented to the magistrate. He rejected the suggestion advanced, with the support of some limited authority, that a review might be upheld on the basis of an "unwitting error" on the part of the magistrate. His Honour noted the distinction between the statutory power given to the Supreme Court pursuant to s 107, and the nature of an appeal under the Criminal Code, s 401(1), which "gives the Court of Criminal Appeal a power to uphold an appeal if a miscarriage of justice is shown". In relation to the question of "unwitting error", his Honour quoted Evans J in Turner v Driver [2005] TASSC 85 at [6], where his Honour, in refusing to receive further evidence upon hearing a motion to review, said, "The learned magistrate could not err in relation to a matter of which he had no knowledge."
4. I agree with and follow the conclusion reached by Crawford CJ. In order to succeed with this motion, the applicant would need to demonstrate an error of fact and/or law on the basis of the information which was presented to the magistrate. It is my conclusion that she is unable to do so.
5. The essence of the applicant's complaint is that she has been the subject of a miscarriage of justice. Taken at its highest, her argument is that, had she been told about the prior death of the essential witness against her, she would not have pleaded guilty, and thereby admitted guilt to offences in respect of which she claims innocence. Even if this argument has merit, the difficulty the applicant faces is that she is unable to demonstrate an error on the part of the magistrate. On the contrary, it is clear that his Honour checked more than once with the applicant's counsel during the plea in mitigation to ensure that the plea represented an unequivocal admission of guilt. He was assured by counsel, undoubtedly in the presence of the applicant, that this was the case. This was done after the applicant and her counsel had become aware of the witnesses' death, although, in any event, it would be difficult to detect an error on the part of the magistrate.
6. The other way in which a person aggrieved by an order of justices can attack the order, is to make application pursuant to s 111 for a hearing de novo. Such an order will be available if the Court is satisfied that, having regard to all the circumstances, the interests of justice require that the complaint be reheard de novo. It is not necessary to establish a ground of review pursuant to s 107(4) before such an order can be made. See Coppleman v Godfrey [2014] TASSC 60. However, in this case, an order for a rehearing de novo is not available having regard to the provisions of s 111(3)(b) which provides that no application for such an order shall be made "on the applicant's plea of guilty".
7. Apart from the circumstances described above, the applicant does not assert that there has been any other error on the part of the magistrate. It follows that the motion to review cannot succeed. For these reasons, I determined that it was appropriate to dismiss the motion.