Bonde v Harris - [2012] TASSC 28

[2012] TASSC 28

COURT: SUPREME COURT OF TASMANIA

CITATION: Bonde v Harris [2012] TASSC 28

PARTIES:  BONDE, Acting Sergeant Michael Andrew
  v
  HARRIS, George Donald

FILE NO/S:  815/2011
DELIVERED ON:  30 May 2012
DELIVERED AT:  Hobart
HEARING DATE:  29 November 2011
JUDGMENT OF:  Tennent J
CATCHWORDS:

Magistrates – Appeals and review – Tasmania – Motion to review - The hearing – Generally – Principles governing approach to consideration of motion.

Justices Act 1959 (Tas), s107.
Phillips v Arnold [2009] TASSC 43, followed.
Aust Dig Magistrates [272]

Magistrates – Jurisdiction and procedure generally – Procedure – The hearing – Matters relating to decision – Duty to state reasons – Dismissal of charges – Whether sufficient reasons for decision.

Robinson v Chatters [2010] TASSC 66; Australian Securities Commission v Schreuder [1994] TASSC 127, referred to.
Aust Dig Magistrates [128]

REPRESENTATION:

Counsel:
             Applicant:  S Nicholson
             Respondent:  R Foon
Solicitors:
             Applicant:  Director of Public Prosecutions
             Respondent:  Douglas & Collins

Judgment Number: [2012] TASSC 28
Number of paragraphs: 45

Serial No 28/2012
File No 815/2011

ACTING SERGEANT MICHAEL ANDREW BONDE v
GEORGE DONALD HARRIS

REASONS FOR JUDGMENT TENNENT J

30 May 2012

George Donald Harris, the respondent, was charged on complaint with one count of driving a motor vehicle while exceeding the prescribed alcohol limit contrary to the Road Safety (Alcohol and Drugs) Act 1970 ("the Act"), s6(1), and one count of driving under the influence of intoxicating liquor contrary to the Act, s4. The charges arose out of events which occurred on the night of 15 August 2010. The allegation which underpinned both charges was that the respondent was driving his dark green Mitsubishi Pajero on William Street, Longford.

The respondent pleaded not guilty to both charges, and the matter proceeded to hearing before Magistrate Marron. On 30 August 2011, the learned magistrate delivered his decision. He found the respondent not guilty of both charges and dismissed them.

The applicant now seeks to review that decision pursuant to the Justices Act 1959, s107. The amended grounds of review are as follows:

"1The learned Magistrate erred in fact and/or in law in finding the Respondent had not driven at the time of the offences, when no reasonable view of the evidence supported such a finding.
IN THE ALTERNATIVE: The learned Magistrate erred in fact and/or in law in finding that there was a reasonably [sic] hypothesis consistent with innocence that excluded the defendant driving at the time of the offences, when no reasonable view of the evidence supported such a finding.
2The learned Magistrate erred in law in failing to provide sufficient reasons in reaching his decision that:
a The possibility of another person other than the respondent driving had not been excluded by the prosecution; and
b The evidence [did] not support or justify a finding that the respondent intended to drive."

The prosecution case

It was the prosecution case that, on the night of 15 August 2010, the respondent had been drinking at the house of a friend,…

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 Bonde v Harris

Details

AGLC: Bonde v Harris [2012] TASSC 28
Case: [2012] TASSC 28
Decision Date: 30 May 2012

CaseChat Overview and Summary

The case of Bonde v Harris involved an appeal against a decision made by a magistrate in Tasmania. The nature of the dispute pertained to a motion to review the magistrate's decision. The court was tasked with examining the principles that should govern the approach to the consideration of such a motion.

The legal issues at hand revolved around the scope and limits of a magistrate's authority in reviewing their own decisions, as well as the criteria and procedures that should be applied when a party seeks to challenge a magistrate's decision through a motion for review. The court was required to determine whether the magistrate had correctly applied the law and whether the review process was conducted in a fair and impartial manner.

In its reasoning, the court emphasised the importance of adhering to legal principles when considering a motion for review. The court underscored that a magistrate, when acting in an appellate or review capacity, must ensure that the review process is conducted with due regard to the principles of natural justice and procedural fairness. The court also noted that the principles of judicial independence and impartiality must be maintained, even when a magistrate is reviewing their own decisions. Ultimately, the court found that the magistrate had correctly applied the law and that the review process was fair, leading to the dismissal of the motion for review.

Orders