Clark v Kacir - [2023] TASSC 24

[2023] TASSC 24

COURT:	SUPREME COURT OF TASMANIA
CITATION:	Clark v Kacir [2023] TASSC 24
PARTIES:	CLARK, Natalie
v
KACIR, Ambrose Steven
FILE NO:	2278/2022
DELIVERED ON:	19 July 2023
DELIVERED AT:	Hobart
HEARING DATE:	30 January 2023
JUDGMENT OF:	Brett J
CATCHWORDS:

Magistrates – Appeal and Review – Tasmania – Motion to review – Powers of court – Whether Magistrate erred in law by refusing to grant an adjournment sought by the prosecutor due to a key witness' unavailability - Where no evidence could be tendered and charge dismissed as a result –Held that Magistrate's decision was appropriate and lawful - Motion dismissed.

Police Offences Act 1935 (Tas), s 13(1)(D).
Hamilton v Littlejohn [2006] TASSC 109, discussed.

Aust Dig Magistrates [1347]

REPRESENTATION:

Counsel:

Applicant: A Hogan
Respondent: In person

Solicitors:

Applicant: Director of Public Prosecutions

Judgment Number:	[2023] TASSC 24
Number of paragraphs:	15

Serial No 24/2023 File No 2278/2022

NATALIE CLARK v AMBROSE STEVEN KACIR

REASONS FOR JUDGMENT

BRETT J
19 July 2023

1 This motion concerns Magistrate Cure's refusal of a prosecution application for the adjournment of a hearing of a complaint brought against the respondent. The respondent was charged with one count annoying another person contrary to s 13(1)(D) of the Police Offences Act 1935. The charge was listed for hearing on 5 August 2022. The prosecution applied for an adjournment because an essential prosecution witness, the person against whom the offence was alleged to have been committed, was not able to attend court on that day. She was, in fact, overseas at the time. As a result of her Honour's refusal of the adjournment, the prosecution was unable to present any evidence at the hearing and, accordingly, the charge was dismissed.
2 There are two grounds of review, firstly that the magistrate erred in fact and/or law by refusing to grant the adjournment and, secondly, that the magistrate erred by dismissing the complaint when she had no power to do so. Both grounds depend upon the argument that the magistrate erred by not granting the adjournment.
3 The procedural history of the case is as follows. The offence was alleged to have been committed on 12 August 2020 at Whitemark on Flinders Island. The alleged facts were stated by the prosecutor during the adjournment application. It was alleged that the complainant had been exempted from a requirement to remain in hotel quarantine as a COVID-19 measure. She was permitted to undertake quarantine at her home address in Whitemark instead. After she had completed the fourteen day isolation period, she was in town when the defendant approached her and said he was unhappy that she had been granted the exemption and considered that "she had wroughted the system". He approached her again in an aggressive manner and there was a heated exchange between them. At the conclusion of this exchange, he told the complainant to "get out of town". Both the complainant and the respondent were living…

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 Clark v Kacir

Details

AGLC: Clark v Kacir [2023] TASSC 24
Case: [2023] TASSC 24
Decision Date: 19 July 2023

CaseChat Overview and Summary

Clark v Kacir concerned an appeal against a decision made in the Magistrates Court of Tasmania. The dispute arose when the prosecutor sought an adjournment due to the unavailability of a key witness. As a result of the adjournment refusal, no evidence could be presented, leading to the dismissal of the charge against the defendant. The court was required to determine whether the Magistrate had erred in law by refusing the adjournment request and whether this decision was appropriate and lawful.

The central legal issue before the court was whether the Magistrate had exercised their discretion correctly in denying the adjournment. The court needed to assess if the Magistrate's decision was within their lawful powers and whether it was justified given the circumstances. The prosecutor argued that the adjournment was necessary due to the unavailability of a key witness, while the defendant contended that the refusal was justified and did not constitute an error of law.

In delivering the judgment, the court held that the Magistrate's decision was appropriate and lawful. The court found that the Magistrate had considered the relevant factors and exercised their discretion correctly. The unavailability of the key witness, while unfortunate, did not necessitate a deviation from the standard practice in such matters. Consequently, the court dismissed the motion to review, affirming that the Magistrate had acted within their powers and appropriately in the circumstances.

Orders