Coppleman v Godfrey

Case [2014] TASSC 60

[2014] TASSC 60

COURT:  SUPREME COURT OF TASMANIA

CITATION:                 Coppleman v Godfrey [2014] TASSC 60

PARTIES:  COPPLEMAN, Paul James
  v
  GODFREY, Jessica Maree

FILE NO:  20/2014
DELIVERED ON:  14 November 2014
DELIVERED AT:  Hobart
HEARING DATE:  16 September 2014
JUDGMENT OF:  Wood J

CATCHWORDS:

Magistrates – Appeal and review – Tasmania – Motion to review – Other matters – Application for hearing de novo – Whether requiring a ground of review as per s 107(4) of the Justices Act 1959 (Tas) – Whether the interests of justice require that the complaint be heard de novo.

Justices Act 1959 (Tas), ss 107, 111.
Webster v White [1991] TASSC 75; Webster v White (No 2) [1991] TASSC 80; H v Williams [1995] TASSC 33; Traynor v McCullagh (2011) 218 A Crim R 177, considered.
TKWJ v The Queen (2002) 212 CLR 124, applied.
Aust Dig Magistrates [1349]

REPRESENTATION:

Counsel:
             Applicant:  E Hughes, K Abercromby
             Respondent:  S Nicholson
Solicitors:
             Applicant:  Rae & Partners
             Respondent:  Acting Director of Public Prosecutions

Judgment Number:  [2014] TASSC 60
Number of paragraphs:  72

Serial No 60/2014

File No 20/2014

PAUL JAMES COPPLEMAN v JESSICA MAREE GODFREY

REASONS FOR JUDGMENT  WOOD J

14 November 2014

  1. Paul James Coppleman was charged on complaint with one count of common assault and one count of breach of a family violence order. He was found guilty of both charges by Magistrate M Brett on 21 October 2013.  Mr Coppleman has brought a motion to this Court to review his conviction.

The ground of review

  1. The notice to review sets out the singular ground of review that the learned magistrate "erred in fact and/or in law in that his finding of the complaint proved against the Applicant was unsafe and unsatisfactory in all the circumstances of the case".  Particulars of the ground have been provided and all concern the conduct of defence counsel at the hearing.  The notice to review, in its amended form,  sets out the particulars as follows:

    "•   That counsel at the hearing admitted evidence without objection in the absence of instructions to do so, namely records of SMS text messages.

    •That counsel at the hearing admitted evidence without objection in the absence of instructions to do so, namely the video record of interview between the Applicant and Tasmania Police dated the 31st July, 2013.

    •That counsel at the hearing failed to call material witnesses who were present, willing and able to give evidence on the matter, namely Melinda Coppleman and Ross James Coppleman.

    •That counsel at the hearing failed to adduce evidence through the witness, Melinda Coppleman contradicting evidence of the complainant with respect to a phone call in which she makes complaint with respect to the Applicant having committed an assault.

    •That counsel at the hearing failed to adduce evidence in support of the Applicant's case namely a recording of the phone conversation between the complainant and the witness Melinda Coppleman which contradicts the complainant's evidence…

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Coppleman v Godfrey [2014] TASSC 60
Case
[2014] TASSC 60
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CaseChat Overview and Summary

In the case of Coppleman v Godfrey, the applicant, Coppleman, sought to appeal a decision made by Godfrey, a justice, through the Supreme Court under the Justices Act 1959 (Tas). The primary issue before the court was whether an application for a hearing de novo required a ground of review as per section 107(4) of the Justices Act 1959 (Tas), and whether the interests of justice mandated that the complaint be reheard de novo.

The court considered the statutory framework provided by the Justices Act 1959 (Tas), particularly sections 107 and 111, which outline the process for reviewing decisions made by justices. Section 107(4) specifies the grounds upon which review may be sought, including errors of fact or law or lack of jurisdiction. Section 111(4) provides that a hearing de novo may only be ordered if the court is satisfied that the interests of justice require it. The court found that section 111(4) did not impose an obligation to state a ground of review before applying for a hearing de novo, as the provision focuses on whether the interests of justice warrant such a hearing.

The court concluded that the requirement to state a ground of review, as per section 107(4), did not apply to an application for a hearing de novo under section 111. Instead, the court must consider whether the interests of justice necessitate a rehearing de novo, based on the specific circumstances of the case. This interpretation aligns with the discretionary nature of section 111(4), which empowers the court to order a de novo hearing when it deems necessary.

The Supreme Court dismissed the appeal, finding that the application for a hearing de novo did not require a ground of review under section 107(4) and that the interests of justice did not support rehearing the complaint de novo. The court made no orders for a rehearing de novo.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

The relevant statutory provisions are as follows: "107 Summary mode of reviewing decisions of justices(1) A person who is aggrieved by an order of justices may, upon notice in accordance with this section, move the Supreme Court to review that order.(2) A notice of motion under this section –(a) shall be known as a notice to review; and(b) shall set forth in specific terms the ground on which review is sought.(3) An applicant under this section shall, within 21 days after the making of the order to be reviewed –(a) file a notice to review in the Supreme Court; and(b) serve a copy of that notice on –(i) the person interested in upholding the order; and(ii) the clerk to the justices making the order.(4) The grounds set forth in a notice to review shall allege –(a)an error or mistake on the part of the justices on a matter or question of fact alone, or of law alone, or of both fact and law; or(b) that the justices had no jurisdiction to make the relevant order.(5) A notice to review shall be made returnable on the prescribed day for the return of those notices that first occurs not less than 28 days after the making of the relevant order by the justices.(6) A judge in his discretion may, on an affidavit setting forth reasonable grounds, extend the time mentioned in subsection (3) at any time within that time or after it has expired.108 Applicant limited to grounds to be stated in notice to review(1) On the hearing of a motion made on notice to review, the applicant shall be held to the ground set forth in his notice to review unless the court, on such terms as to costs and otherwise as it thinks proper, allows amendment of the notice.(2) A notice to review may be amended under this section by adding new grounds and by striking out and amending existing grounds.…..110 Powers of Supreme Court(1) The Supreme Court shall be constituted by a single judge for the hearing of motions to review under section 107, but the judge may reserve the motion or any point arising thereon for the Full Court or direct the motion or any such point to be argued in the Full Court, and the Full Court has power to hear and determine any motion or point so reserved or directed to be argued.(2) On the hearing of a motion to review, the court shall, upon consideration of the evidence and materials adduced and brought before the justices and such further evidence (if any) as it thinks fit, review the order so far as relates to the ground set forth in the notice to review, and thereupon may do all or any of the following things, namely:(a) dismiss the motion;(ab)in a case where the court considers that no substantial miscarriage of justice has occurred even though the cause or matter raised by the motion might be decided in favour of the applicant, dismiss the motion;(b) confirm, vary, amend, rescind, set aside, or quash the order reviewed;(c)remit the cause or matter to the justices by whom it was dealt with, either with or without any direction in law;(d) order that the cause or matter be re-tried by a magistrate;(e)prohibit the justices concerned, or any other person, from proceeding or further proceeding in respect of the order;(f)amend or cause to be amended, on such terms as are just, any defect or error in any proceedings before the justices;(g)make all such orders and cause all such proceedings to be had and taken as the court thinks necessary to secure a final determination of the cause or matter on the merits;(h)exercise, in addition to any other powers conferred by this section, any power which the court might exercise upon habeas corpus or an order of review under the Judicial Review Act 2000;(i)exercise any power that might have been exercised by the justices in relation to whose order the motion to review is made.(2AA) The court, on hearing a motion to review in relation to an order imposing a sentence on a person in relation to a matter, may, whether the person who filed the notice of review in respect of the order was the person or the prosecutor, take into account any matter, relevant to sentencing, that has occurred between when the justices who made the order dealt with the person in relation to the matter and when the court hears the motion to review.(2AB) Despite subsection (2AA), the court, in exercising in relation to an order a power under subsection (2), the effect of the exercise of which is that the person to whom the order relates is being sentenced again for an offence, must not take into account any element of double jeopardy involved in the person being sentenced again so as to impose a less severe sentence than the court would otherwise consider appropriate.(2AC) If the court quashes an order, made by justices, in relation to a matter and remits the matter under subsection (2) to the justices, either with or without any direction in law –(a)the justices must hear and determine the matter in accordance with the law and any such direction in law; and(b)the justices, in sentencing the person in relation to the matter, may take into account any matter relevant to sentencing that has occurred between when the court made the quashed order and when the justices determine the remitted matter; and(c)despite paragraph (b), the justices must not take into account the element of double jeopardy involved in the person being sentenced again, so as to impose a less severe sentence than the justices would otherwise consider appropriate.(2A) If the court considers that the reasons given for making the order under review are insufficient, it may, before doing anything under subsection (2), remit the matter to the justices who made the order with a direction to furnish the court with further and better reasons within such time as the court specifies.(2B) If subsection (2A) applies, the court must cause the further and better reasons to be made known to the parties to the notice to review as soon as practicable after they have been furnished to the court and, in any event, before the court proceeds to do anything under subsection (2).(3) On the hearing of a motion to review, all such amendments shall be made under subsection (2)(f) as may be necessary for the purpose of determining the cause or matter on the merits.111 Hearings de novo(1) Notwithstanding anything contained in section 110 and subject to this section, a person who has filed, or has been served with, a notice to review may apply to the Supreme Court for an order that the complaint to which the notice relates be heard de novo and determined in the Supreme Court.(2) An application for an order under subsection (1) may be made on a return day fixed for the notice to review to which it relates or on summons on any day before that day and shall in any case, except with the consent of the respondent to the application, be made before the commencement of the hearing of the motion to review to which it relates.(3) No application for an order under subsection (1) shall be made in relation to a notice to review an order –(a) made ex parte, unless the applicant has first applied to set it aside;(b) made on the applicant's plea of guilty; or(c) made by 2 or more justices.(4) An order shall not be made under subsection (1) unless the court is satisfied that, having regard to all the circumstances, the interests of justice require that the complaint be reheard de novo.(5) Without limiting the generality of the provisions of subsection (4), the court may make an order under subsection (1), if –(a)there does not exist, or it is not practicable to bring into existence, any sufficient account of that part of the proceedings to which any ground set out in the notice to review relates;(b)at the hearing of the complaint the applicant was not represented by counsel and evidence available at that time amounting to a substantial ground of defence was not then adduced; or(c) the parties to the notice to review consent to the making of an order.(6) Upon the making of an order under subsection (1), the court –(a)may make such orders as to costs occasioned by the notice to review and the application as the court thinks fit;(b)may require security for the costs of the rehearing of the complaint to be given; and(c)may extend the operation of any order made on the notice to review or make any order that, but for the application, might have been made on the notice to review pursuant to section 109(1)(c) or (d).(7) Where a complaint is heard and determined de novo pursuant to this section, the court has all the powers of the justices at the original hearing of the complaint, and the orders and warrants of the court have the like effect, and are enforceable in the like manner, as if they were made or issued by the justices.(8) Notwithstanding anything contained in the foregoing provisions of this section, the court may, if it considers it expedient so to do, order that a complaint in respect of which an application for an order under subsection (1) has been made shall be reheard by a magistrate and may exercise the powers referred to in subsection (6) on making such an order."

Ratio Decidendi

Legal Principle Established

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