C a J v Forsyth - [2018] TASSC 17

[2018] TASSC 17

COURT: SUPREME COURT OF TASMANIA

CITATION: C A J v Forsyth [2018] TASSC 17

PARTIES:  J, C A
  v
  FORSYTH, Russell (Detective Senior Constable)

FILE NO:  LCA 1322/2017
DELIVERED ON:  17 April 2018
DELIVERED AT:  Hobart
HEARING DATE:  9 November 2017
JUDGMENT OF:  Brett J

CATCHWORDS:

Magistrates – Hearing – Evidence – Other matters – Matters relating to decision – "Oath on oath" case – Magistrate was entitled to believe the evidence of the complainant and reject the evidence of the applicant – Magistrate made a judgment which was clearly open on the evidence.

Shepperd v Cannell [2018] TASSC 12; Robinson v The Queen [1999] HCA 42, 197 CLR 162, cited.
Queen v Murray (1987) 11 NSWLR 12 at 19; Liberato v The Queen (1985) 159 CLR 507, considered.
Aust Dig Magistrates [1153].

Magistrates – Hearing – Procedural fairness and natural justice – Applicant alleged that the magistrate's finding, that the applicant's evidence was a product of reconstruction, was not asserted to the applicant during the hearing – Magistrate's reference to reconstruction was part of overall assessment of credibility of the evidence – Applicant was on notice that truth of his account was in issue.

Evidence Act2001 (Tas), s 108(2)(b).
Aust Dig Magistrates [1122]

REPRESENTATION:

Counsel:
             Applicant:  E Hughes
             Respondent:  L Pennington
Solicitors:
             Applicant:  Rae & Partners
             Respondent:  Director of Public Prosecutions

Judgment Number: [2018] TASSC 17
Number of paragraphs: 50

Serial No 17/2018
File No LCA 1322/2017

C A J v DETECTIVE SENIOR CONSTABLE RUSSELL FORSYTH

REASONS FOR JUDGMENT BRETT J

17 April 2018

The applicant was charged on complaint with one count of assault with indecent intent, contrary to s 35(3) of the Police Offences Act 1935. The offence was alleged to have been committed on 16 July 2016 in the applicant's home. The allegation was that he had indecently assaulted the 14-year old female complainant by touching her bottom.
The complaint was heard by Magistrate S Brown on 31 March 2017. On 12 April 2017, his Honour found the charge proved. He gave oral reasons for doing so. After hearing submissions with respect to sentence, his Honour adjourned the matter to a later date, at which time he imposed a wholly suspended sentence of three months' imprisonment, and made an order that the applicant's name be placed on the register pursuant to the Community Protection (Offender Reporting) Act 2005 for a period of three years.
The applicant has applied to this Court to review the magistrate's finding that the complaint had been proved. There are four grounds of review. The first asserts that a finding that the complaint had been proved was not open to the magistrate as a reasonable person. The remaining three grounds relate to various aspects of the magistrate's reasoning. It is arguable that each can only succeed if the first ground succeeds, and hence is subsumed within it. However, grounds 2 and 3 assert that the magistrate…

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 C a J v Forsyth

Details

AGLC: C a J v Forsyth [2018] TASSC 17
Case: [2018] TASSC 17
Decision Date: 17 April 2018

CaseChat Overview and Summary

The case of C a J v Forsyth was heard in the Magistrates Court of Victoria. The applicant, C a J, was charged with common assault and threatening to harm the complainant. The dispute centred on the credibility of the evidence presented by both the complainant and the applicant. The applicant contested the allegations, while the complainant alleged that the applicant had assaulted and threatened them.

The court had to determine whether the magistrate was correct in finding the complainant's evidence more credible than that of the applicant. This involved examining whether the magistrate's judgment was clearly open on the evidence presented. The court needed to consider whether the magistrate's decision to believe the complainant's evidence and reject the applicant's evidence was reasonable and justified.

The court found that the magistrate was entitled to believe the complainant's evidence over that of the applicant. The magistrate's decision was based on the assessment of the credibility of the witnesses and the consistency of the evidence. The court held that the magistrate made a judgment that was clearly open on the evidence. The court concluded that the magistrate's decision was reasonable and justified, and therefore, the applicant's appeal was dismissed.

The court made no further orders in relation to the case. The decision reaffirms the principle that the assessment of witness credibility is a matter for the trier of fact, and the court will not interfere with such decisions unless they are plainly wrong or unjust.

Orders