Carlsen v Wilkie - [2018] TASSC 1

[2018] TASSC 1

COURT: SUPREME COURT OF TASMANIA

CITATION: Carlsen v Wilkie [2018] TASSC 1

PARTIES:  CARLSEN, Leon Gene
  v
  WILKIE, Scott (Senior Constable)

FILE NO:  2835/2016
DELIVERED ON:  11 January 2018
DELIVERED AT:  Hobart
HEARING DATE:  30 January 2017
JUDGMENT OF:  Wood J

CATCHWORDS:

Magistrates – Hearing – Variance between contents of initiating process and evidence – Generally –Name of victim particularised in charge of assault but not proved – No prejudice caused by departure from particulars – Name of victim not a material particular – Not shown that complaint should have been dismissed.

Justices Act 1959 (Tas), s 31.
Johnson v Miller (1937) 59 CLR 467; Wickham v Cole [1957] Tas SR 111; Riseley v The Queen [1970] Tas SR 41; R v Stringer [2000] NSWCCA 293; 16 A Crim R 198, referred to.
Aust Dig Criminal Law [1165]

REPRESENTATION:

Counsel:
             Applicant  G Barns
             Respondent:  S Nicholson
Solicitors:
             Applicant:  Leonard Fernandez
             Respondent:  Director of Public Prosecutions

Judgment Number: [2018] TASSC 1
Number of paragraphs: 55

Serial No 1/2018
File No 2835/2016

LEON GENE CARLSEN v SENIOR CONSTABLE SCOTT WILKIE

REASONS FOR JUDGMENT WOOD J

11 January 2018

After a hearing in the Magistrates Court before Magistrate G Hay, Leon Carlsen was found guilty of an offence of common assault. The details of the charge are:
"Charge: Common Assault
Breach of: Section 35(1) Police Offences Act, 1935
Particulars: You are charged with on the 4th March, 2015 at Hobart in Tasmania, unlawfully assaulting Scott Lewis Niccolls by punching him to the body and head."
At the hearing there was evidence of an assault upon a male person, but not of the identity of the victim. The charge was found proved on the basis that the court was satisfied beyond reasonable doubt that a male person was assaulted in the way set out in the particulars. It is asserted on review that the identity of the victim was a material particular and that in the absence of proof that the person assaulted was named Scott Lewis Niccolls, the charge should have been dismissed. The sole ground of appeal is in terms that:
"The learned magistrate erred in law, or in fact and law, in finding that the prosecution did not have to prove beyond reasonable doubt, the identity of the alleged victim of the alleged assault."
A co-defendant, Adam Leslie, was jointly charged with the same offence, with the same particulars. He was charged with a second assault on Mr Niccolls by pushing on the back of his head and kicking him to the head, and also an assault upon another person, Stephen George, by punching him to the head. These additional assaults were alleged to have occurred close in time and during the same incident. The applicant faced additional charges which arose from his conduct in driving after he and Mr Leslie left the scene: driving a motor vehicle with a breath alcohol reading of .112…

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 Carlsen v Wilkie

Details

AGLC: Carlsen v Wilkie [2018] TASSC 1
Case: [2018] TASSC 1
Decision Date: 11 January 2018

CaseChat Overview and Summary

In the matter of Carlsen v Wilkie, the defendant was charged with assault. The case was heard before a magistrate. The primary dispute was whether the variance between the contents of the initiating process and the evidence presented in court warranted dismissal of the complaint. The charge of assault specified the name of the victim, but this was not proved during the trial. The defendant argued that this discrepancy caused prejudice and that the complaint should have been dismissed.

The legal issues the court had to resolve included whether the name of the victim was a material particular in the context of the assault charge and whether the variance between the initiating process and the evidence resulted in such prejudice that the complaint should have been dismissed. The court considered whether the defendant was prejudiced by the fact that the name of the victim was particularised in the charge but not proved in the evidence.

The court concluded that the name of the victim was not a material particular for the purposes of the assault charge, and therefore, the variance did not prejudice the defendant. The court held that it was not shown that the complaint should have been dismissed due to the discrepancy between the initiating process and the evidence. The court found that the defendant was not prejudiced by the variance and that the evidence presented was sufficient to support the charge of assault.

The court dismissed the defendant's argument and ruled in favour of the prosecution. The final orders were for the defendant to face trial on the charge of assault, as the variance between the initiating process and the evidence did not constitute grounds for dismissing the complaint.

Orders