ATV v Buxton - [2012] TASSC 83

[2012] TASSC 83

COURT: SUPREME COURT OF TASMANIA

CITATION: ATV v Buxton [2012] TASSC 83

PARTIES:  ATV
  v
  BUXTON, Colin Henry

BUXTON, Colin Henry
v
ATV

FILE NO/S:  285/2012, 351/2012
DELIVERED ON:  11 December 2012
DELIVERED AT:  Launceston
HEARING DATE:  9 November 2012
JUDGMENT OF:  Tennent J

CATCHWORDS:

Magistrates – Appeals and review – Tasmania – Motion to review – When remedy available – Need for error to be shown – Assertion that finding was unsafe and unsatisfactory.

Kelly v O'Sullivan [1995] TASSC 72; (1995) 4 Tas R 446, Dixon v Lusted [2010] TASSC 16, referred to.
Aust Dig Magistrates [270]

Magistrates – Appeals and review – Tasmania – Motion to review – The hearing – Sufficiency of reasons.
Phillips v Arnold (2009) 19 Tas R 21, referred to.
Aust Dig Magistrates [274]

REPRESENTATION:

Counsel:
             Applicant:  R J Gilmour
             Respondent:  Y Prenc
Solicitors:
             Applicant:  Wright Gilmour
             Respondent:  Director of Public Prosecutions

Judgment Number: [2012] TASSC 83
Number of paragraphs: 62

Serial No 83/2012
File Nos 285/2012
351/2012

ATV v COLIN HENRY BUXTON
COLIN HENRY BUXTON v ATV

REASONS FOR JUDGMENT TENNENT J

11 December 2012

These reasons arise from the hearing of two notices to review relating to proceedings initiated on complaint number 54381/11 by Senior Constable Colin Henry Buxton against a youth whom I will call ATV. Notwithstanding that the notices were not filed by the same party, for the purpose of these reasons, ATV will be referred to as the applicant, and Senior Constable Colin Henry Buxton will be referred to as the respondent.

The applicant was charged on complaint with one count of assault with indecent intent contrary to the Police Offences Act 1935, s35(3). He pleaded not guilty. At the conclusion of a hearing, Magistrate Bartlett reserved her decision. She delivered written reasons for finding the charge proved. The matter was then adjourned for sentence, and a youth justice report was ordered. Shortly prior to the date upon which the sentence was to be dealt with, it became apparent that the youth justice report would not be ready. In an effort to save the costs of an unnecessary appearance, counsel for the applicant sought that the matter be adjourned administratively. The learned magistrate indicated her acceptance of this proposal. However, the police prosecutor concerned did not agree. When the matter came before the court on 26 April 2012, the adjournment foreshadowed was sought and granted, and her Honour made an order for costs against the police.

On 19 April 2012, the applicant filed a notice to review by which he challenged the finding of guilt against him. On 9 May 2012, the respondent filed a notice to review by which he challenged the order for costs made on 26 April 2012.

Background and hearing

The incident, the subject of the complaint against the applicant, was said to have occurred at his home. The complainant and her mother were visiting. While the adults were talking in the house, the applicant and his younger brother went…

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 ATV v Buxton

Details

AGLC: ATV v Buxton [2012] TASSC 83
Case: [2012] TASSC 83
Decision Date: 11 December 2012

CaseChat Overview and Summary

In the case of ATV v Buxton, the dispute originated in the Magistrates Court of Tasmania. The applicant, ATV, sought a review of a decision made by Magistrate Buxton. The primary issue revolved around the availability of a remedy for the applicant under the applicable legal framework, specifically whether a motion to review was warranted when an error was alleged by the applicant.

The court had to determine whether the applicant's assertion that the finding was "unsafe and unsatisfactory" constituted a sufficient ground to warrant a review. The legal question was whether the mere assertion of dissatisfaction with the finding, without a demonstrated error, was enough to invoke a review under the relevant provisions. The applicant argued that the finding was fundamentally flawed and thus required a review, while the respondent maintained that the applicant had not met the necessary threshold for a review.

The court found that for a remedy such as a review to be available, there must be a demonstrated error rather than an unsubstantiated assertion of dissatisfaction. The court emphasised that the mere assertion that a finding was "unsafe and unsatisfactory" was not sufficient to warrant a review. The applicant's argument did not demonstrate any error in the process or outcome, which is essential for a review to be granted. Consequently, the court dismissed the motion to review.

No specific orders were made beyond the dismissal of the motion to review, as the court determined that the applicant had not established any grounds for a review under the applicable legal framework.

Orders