Coppleman v Godfrey
[2014] TASSC 60
•14 November 2014
[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
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
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 as to the contents of that conversation.
•That counsel at the hearing failed to adduce evidence of the movements of the Applicant on the 2nd July, 2013 tending to establish an alibi."
Prior to the hearing of the review, affidavits were filed concerning the conduct of the defence, such as evidence that was available but not adduced at trial, and discussions between the applicant and his legal practitioner regarding the available evidence. It is evident that the motion to review concerned matters extraneous to the evidence presented at trial, and there was no suggestion of error by the learned magistrate on the evidence.
Application for hearing de novo is opposed
At the commencement of the hearing, the applicant made oral application for the complaint to be heard de novo, pursuant to s 111 of the Justices Act 1959. The application was opposed on the basis that the notice to review did not assert an error of fact or law within the terms of s 107(4) of the Act. Counsel for the respondent made submissions relying on a line of authority to the effect that error of fact or law, by its nature, results in a consideration of the material before the magistrate and does not extend to error disclosed by extraneous material. Because there was no assertion of error by reference to the materials before the learned magistrate, it was submitted that the motion must fail.
It is submitted for the applicant that the ground of review, contained in the notice and the particulars, is "a valid ground of review within the meaning of s 107(4) for the purposes of the consideration of the need for a hearing de novo pursuant to Section 111". That begs the question whether the ground here falls within s 107(4).
Ambit of s 107(4)
I proceed on the basis that the ground of unsafe and unsatisfactory in this case, dependent as it is on extraneous material and amounting to a grievance about the conduct of the trial by counsel, falls outside s 107(4). It does not explicitly or impliedly assert an error of fact or law on the part of the learned magistrate. There are two reasons why the ground in this case falls short of such an assertion. The ground of unsafe and unsatisfactory on its face does not coincide with the statutory test that governs the review in s 107(4), because it does not contain an assertion of an error or mistake of fact or law: Hadju v Brown [2007] HCATrans 245 (24 May 2007); Phillips v Arnold (2008) 17 Tas R 199.Nevertheless, it is acknowledged that "unsafe or unsatisfactory" considerations may still be relevant to the ultimate question of whether the magistrate was in error: Smith v McDonald [2010] TASSC 26. There is a further difficulty with meeting subs (4) in that, as I mentioned, the ground is dependent on extraneous material not before the learned magistrate. There is compelling authority for the proposition that error that is disclosed by such material is not "an error or mistake on the part of the justices": Green v Fletcher [1988] Tas R 59, Webster v White [1991] TASSC 75, per Zeeman J at [15], Traynor v McCullagh (2011) 218 A Crim R 177. This kind of error, sometimes referred to as "unwitting error", is not captured by s 107(4). The applicant has not raised any matters of principle or referred to any authorities that would cause me to doubt that well established proposition. This leaves two questions for determination.
Is s 107(4) a prerequisite to the granting of a hearing de novo?
The first question for determination is whether an essential prerequisite for an order that the complaint be heard de novo is that the notice to review satisfies s 107(4) of the Justices Act. If it is not a prerequisite, and it is open to me to grant a hearing de novo, the question which then arises is whether it is in the interests of justice that I do so in this case. The first question is a matter of statutory interpretation regarding the effect of the legislative scheme concerning motions to review.
Statutory provisions
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."
Section 111(1) refers to an entitlement to apply for an order that the complaint be heard de novo in the case of a person who has filed, or has been served with, a "notice to review". Section 107 sets out requirements of notices to review, and subs (4) sets out that the grounds either (a) "shall allege 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) allege "that the justices had no jurisdiction to make the relevant order".
One possible interpretation of the scheme is that the wording of s 111 does not demand, as a prerequisite, an allegation of error of fact or law by the magistrate; it merely requires a notice to review, and a notice not containing such an allegation is not deprived of its status as a notice to review for the purpose of s 111. In contrast, it can be argued that compliance with s 107(4) is essential to the existence of a notice to review. Further to this argument, a ground of review falling within the ambit of s 107(4) is a prerequisite for the operation of s 111. There is case law in support of this latter view.
Authorities
In Risely v Gough [1953] Tas SR 78, Gibson J considered a notice to appeal under s 152(1) of the precursor to the current Justices Act. At that time, the statute made provision for appeal to the Supreme Court leading to a hearing de novo, or alternatively, review of the decision by way of motion to review. The appellant served a notice to appeal which did not contain a ground of appeal. There was a question of whether the defect was a matter of form, which did not deprive the court of jurisdiction to entertain the appeal.
Gibson J stated at 78-79:
"I can see no possible way here of giving the appellant his right of appeal. Jurisdiction … is merely a matter of statute and the statutory provisions must be complied with. Section 152(1) provides that an appellant may appeal “as hereinafter provided”. Sub-section (2) sets out the conditions which must be satisfied. The notice of appeal must set out the grounds of appeal: that is the important thing. The Act does not say that an aggrieved person shall have absolute right of appeal in any case. He must be aggrieved and must comply with the requirements of service, and the notice of appeal must contain grounds of appeal valid in law." (Emphasis added.)
In Hesselman v Reid [1973] Tas SR 93, consideration was given to the notion of a "valid notice to review". A review was lodged in relation to a ruling in affiliation proceedings as to the presumption of sexual incapacity of a defendant, who was less than 14 years of age at the time of the conception. It was argued on review that the matter sought to be reviewed was not an "order" within s 107 of the Justices Act. Crawford J agreed, dismissing the motion. His comments at 95-96 on his power to make an order amending the motion to review are relevant:
"… a review to get before this court must be a review in accordance with the procedure in the Justices Act 1959, Pt. XI, Div. 1; and, if there is to be a review, the notice must state what order is to be reviewed … I have been invited to make an order amending under the power given the court in s. 110(2)(g) but I must agree with Mr Zeeman that the power there to make all such orders as the court thinks necessary to secure a final determination of the cause or matter upon merits does not arise until the court is hearing a motion to review, and that, of course, means a valid motion to review. This motion to review is not a valid one, because it asks the court, as I have already pointed out, to review an order which the court has no power to review."
In Webster v White [1991] TASSC 75, Zeeman J considered the question of whether the existence of error or mistake is to be determined by reference to the material before the justices, or whether it is to be determined by reference to all available material, whether or not that material was before the justices. During the course of argument, passing reference was made to s 111(5)(b), and his Honour made some remarks about the provision and the authority of Hesselman v Reid. His Honour referred to s 111(5)(b), and observed that it may be that the draftsman intended that the provision operate so as to retain the right of appeal that had existed in the former s 113, which had been repealed. His Honour went on to state:
"If that was the intention of the draftsman, then his object has not been achieved. Before an order can be made under s111(1) upon the ground referred to in s111(5)(b), there must be in existence a valid notice to review. That notice must be a notice which satisfies the requirements of s107. If it does not, then it is not a motion to review (see Hesselman v Reid [1973] Tas SR 93). The benefit of s111(5)(b) is only available to an applicant who can raise an error on the part of the justices on the material before them. I would be surprised if the draftsman intended to limit the operation of this provision in this way."
In Webster v White (No 2) [1991] TASSC 80, Zeeman J considered an application seeking an order pursuant to s 111 that the same complaint be heard de novo. His Honour was concerned with three grounds of review which alleged an error in law and/or in fact. At least two of the grounds relied on the materials before the magistrate and not unwitting error. Zeeman J at [1] provided:
"Whilst a valid notice to review is a prerequisite to the exercise of jurisdiction under s111 it is not a prerequisite for validity that any ground by made out. It is a prerequisite for validity that the notice to review set forth as a ground an allegation of the type referred to in s107(4) of the Act. There appears to be no impediment to my now determining that application. Counsel for the respondent did not seek to submit otherwise. I therefore proceed to determine that application."
Counsel for the respondent relies on the statement of his Honour that "It is a prerequisite for validity that the notice to review set forth as a ground an allegation of the type referred to in s107(4)" as being a definitive statement of the effect of the legislative scheme.
In H v Williams [1995] TASSC 33, Zeeman J considered an application for an order that there be a hearing de novo. He set out the history of the legislative scheme and made remarks about the effect of the scheme and the linkage between ss 111 and 107(4):
"Provision has long been made for the re-hearing of a matter heard by justices. Prior to the insertion of s111 in 1974, a person who was aggrieved by an order of justices could seek to have that order reviewed for error or absence of jurisdiction pursuant to s107 or could appeal against it pursuant to the former s113. Such an appeal proceeded by way of hearing de novo. The right of appeal by way of a hearing de novo had existed at least since the Appeals Regulation Act 1855 which provided for an appeal to a Court of General Sessions of the Peace although it seems that such appeal was not available from the commencement of the Justices Procedure Act 1919 until it was amended in 1934 by the insertion of a new s152. When the Justices Act 1959 came into force it contained s113 which was to similar effect as s152.
One effect of the 1974 amendments to the Justices Act was to repeal s113 as it then stood so that the former unqualified right to appeal by way of a hearing de novo of a complaint was removed. It has remained possible to obtain a hearing de novo but only if an order to that effect is made pursuant to s111. Such an order may not be made unless inter alia there has been filed a notice to review. One cannot but wonder whether the legislature gave effect to its real intention when it enacted s111. Observations made by the Attorney-General in the course of his second reading speech in connection with the bill for the 1974 Act, which are reproduced in the judgment of Crawford J in Lindsay v White [sic] A75/1993 at 3, suggest that it did not do so."
His Honour went on to observe:
"The proposition that the former unrestricted right to a hearing de novo ought to be limited to those cases where the court in the exercise of its discretion considers it appropriate by reference to the matters referred to in s111(4) and (5) is easy to understand. What is more difficult to understand is why the jurisdiction to make such an order is dependent upon the filing of a notice to review under s107. A notice to review must assert error or an absence of jurisdiction."
His Honour went on to express concern about this prerequisite for an assertion of error or absence of jurisdiction in the context of s 111. He drew attention to the following concerns:
"It might be said that it would be improper for a legal practitioner to knowingly file a notice to review containing grounds which patently are unarguable and devoid of merit, without having any intention of arguing them and merely so as to provide a jurisdictional basis for the making of an order that there be a hearing de novo. It is arguable that such a notice to review would be an abuse of process (cf Weston v Manning (1970) Tas SR 288 (NC 19)). There would not appear to be any good reason for making the jurisdiction to order a hearing de novo dependent upon the filing of a notice to review which, in order to be valid, must do more than merely seek a review (Risely v Gough (1953) Tas SR 78, cf Hesselman v Reid (1973) Tas SR 93). It is not difficult to imagine cases where the interests of justice clearly would call for a hearing de novo but where there would be no arguable grounds for a review."
In Traynor v McCullagh (above), Crawford CJ considered a motion to review a sentencing order. As part of the application to review, the applicant applied to adduce further evidence. Section 110(2) was relied upon, but notably there was no application for a hearing de novo. Crawford CJ analysed the line of authority which establishes that s 107(4) does not extend to an error disclosed by material which was not before the magistrate. As I said earlier, that proposition is not called into doubt by this review.
In the course of his decision, Crawford CJ considered the legislative scheme as it was when the Justices Act was originally enacted in 1959. It allowed for an aggrieved party to bring his or her grievance before the court in one of two ways, by way of a motion to review or appeal. It is worth setting out his Honour's summary of the effect of the provisions in relation to both pathways.
"When the Justices Act was originally enacted in 1959, it provided for an aggrieved party to proceedings before justices (which term included a magistrate) to bring his or her grievance before this Court in one of two ways. If he or she wished to argue that on the materials before the justices a prima face case of error or mistake by the justices on a matter or question of fact alone, or of law alone, or of both fact and law had occurred, the grievance was brought by way of a motion to review in the then form of s107, and it was argued on the materials that were before the justices. Notwithstanding that s110(2) gave a power to receive further evidence, as it thought fit, it was settled that further evidence could not be relied upon to establish that an error of the necessary kind had been made by the justices. The reason was that s107(4)(a) relevantly required that an affidavit in support of a motion to review show a prima facie case of 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. Although the Act has since been amended, its current requirements are similar. Section 107(4)(a) now requires that the grounds in a notice shall allege 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."
As for an appeal, Crawford CJ stated at [19]:
"The other way to attack an order of justices under the original Act was by way of appeal under s 113. It was the way chosen by aggrieved parties if they wished to rely on evidence that was not before the justices. Such an appeal was conducted by way of a complete rehearing, with witnesses who gave evidence before the justices having to do so again before a judge. However, under s113(8), such a course was not open to a person against an order made ex parte, an order committing a defendant for trial, an order made on the defendant's plea of guilty or a sentence."
Then Crawford CJ gave consideration to the 1974 amendment of the Act which removed the right to appeal. He referred to the background to the amendment:
"Concern was expressed by both prosecutors and judges that a defendant was entitled to a second hearing regardless of whether an error had occurred and merely because he or she did not like the result of the first hearing. Most hearings in courts of petty sessions were before legally trained magistrates and it was considered an unreasonable impost on resources to allow an unfettered right to a second contested hearing of a complaint before a judge. As a result, the Act was amended by the Justices Act 1974 (Tas), so as to remove the right of appeal under s 113. Thereafter, aggrieved persons were generally confined to a motion to review under s 107, which is in a substantially similar form today, and to being forced to establish error on the part of the justices on the material that was before the justices, notwithstanding the power to receive further evidence under s 110(2)."
I note for completeness that a recent decision of Blow CJ in BCD v Secretary, Department of Health and Human Services [2014] TASSC 53 considered an application for a hearing de novo pursuant to s 111, but the notice to review asserted errors on the part of the magistrate falling within s 107(4) and there was no reason to examine the issue that arises here.
The applicant relies on a judgment of Tennent J in a decision of this Court in Nilsson v McDonald [2009] TASSC 1 at [2] and on appeal to the Full Court, the judgment of Blow J (as he then was) in Nilsson v McDonald [2009] Tas R 173 at [62]. Tennent J considered the application for a hearing de novo in a case involving unwitting error, being incompetence of counsel and the failure of counsel to tender documents. Her Honour resolved the application on the basis that the case did not require an exercise of discretion in favour of the application. Blow J assumed, for the purposes of the appeal that such a ground could be a sufficient basis for a judge to order a hearing de novo. The applicant might draw some comfort from the approach taken in each instance, but notably, the point was not decided. The assumption was made without reference to the contrary line of authority and the ground of unwitting error was one of a number of grounds of review; there were others that fell within s 107(4). At least, the point can be made that the notion that s 111 may operate in a way that is detached from s 107(4), while not determined, was not rejected out of hand. However, the contrary line of authority seems to stand in the way of such a conclusion and I now consider that in more depth.
Discussion of the authorities
The foregoing reveals a body of authority in support of the proposition that a prerequisite for the operation of s 111 is an assertion of error or lack of jurisdiction falling within s 107(4). The proposition central to this reasoning is that, as the Court's jurisdiction arises from the statute, the statute must be complied with. Thus, for a notice to review to be valid, it must contain grounds, and the grounds must comply with s 107(4). It is presumed that compliance is required for all purposes, and is necessary for an application under s 111 as well as a hearing under s 110. It is noteworthy that the line of authority does provide support for the applicant on a different point; that the ambit of s 111, contrasted with s 107(4), may relate to unwitting error, and does not require error to be disclosed on the materials before the magistrate. This is clear from the judgment of Zeeman J in Webster v White [1991] TASSC 75 and the passage set out above, which makes reference to s 111(5)(b), allowing evidence that was not adduced at the hearing (in cases involving unrepresented defendants) to be a basis for granting an application. However, the effect of the authorities I have referred to is that, before an application can be made for a hearing de novo, there must be a ground of review that makes an assertion which satisfies s 107(4). Consequently, while a notice to review may assert unwitting error which could ground an application for a hearing de novo, it must also assert error of fact or law on the part of the justices so it can pass through the gateway of s 107(4).
As noted, the respondent relies particularly on Webster v White (No 2). The effect of this decision is to clarify that the making out of any ground alleged pursuant to s 107(4) is not a prerequisite. Zeeman J acknowledged that applying such a prerequisite may necessitate a determination pre-hearing and could not be correct. His Honour concluded that it would be sufficient if there is a ground of review containing an allegation of the type referred to in s 107(4). The question remains why this should be essential to the operation of s 111, if all that is required is a notice to review; is it possible that even an allegation of the type or category mentioned is not a prerequisite? That question did not fall for consideration in Webster v White (No 2), as there were allegations in that case of the type referred to in s 107(4).
While obiter, the analysis of Crawford CJ in Traynor v McCullagh provides further and recent support to the respondent's contention relating to s 107(4). The observations emphasise the 1974 amendments to the legislative scheme and the reasons for those amendments. The reason attributed to the amendment to s 113, removing the right to an appeal, is an intention to confine the right to a second hearing. Crawford CJ described the right of appeal under s 113 as an unfettered right to a second hearing of a complaint. The observation that after the amendment "aggrieved persons were generally confined to a motion to review under s107, … and being forced to establish error on the part of the justices on the material that was before the justices …" identifies a linkage between ss 107(4) and 111 and is germane to the question in this case. The basis for his Honour’s observation about the linkage was not expanded upon and did not arise for consideration in that case. The emphasis on the amendment and the reasons warrant some further consideration to be given to both. I will return to that shortly.
The other matter to be drawn from the body of authority is that the observations reveal considerable disquiet about the existence of such a prerequisite. The disquiet can be summarised as:
• discord with the intention of Parliament;
• the lack of any rationale in the context of s 111;
• the encouraging of false or disingenuous grounds of review; and
• the possibility of abuse of process.
In my view, there is justification for revisiting the question of whether s 107(4) indeed acts as a prerequisite to the operation of s 111.
Before leaving my consideration of the authorities, it is worth noting that the essential reasoning common to the judgments concerns the nature of notices to review as a creature of statute. The central proposition is that, as the Court's jurisdiction arises from the statute, the statute must be complied with leading to the conclusion that a notice to review is invalid if it does not set out an allegation of the type referred to in s 107(4). However, it is now well-established that the approach to be taken in ascertaining whether invalidity is a consequence of non-compliance is to ascertain whether there can be discerned a legislative purpose to invalidate an act that has failed to comply with the statutory provision: Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355. The existence of the purpose is ascertained by reference to the language of the statute, its subject matter and objects, and the consequences for the parties of holding void every act done in breach of the condition: per McHugh, Gummow, Kirby and Hayne JJ at [9].
The question of whether compliance with s 107(4)(d) is a pre-condition to an application under s 111 is closely aligned to the question of validity of the notice despite non-compliance with s 107(4). Both raise the issue of the nexus between ss 107 and 111. Regardless of how the question is crafted, the task is one of ascertaining the statutory purpose.
Before proceeding to this task, I give closer attention to the effect of the 1974 amendments. As mentioned, these amendments assumed significance in the observations of Crawford CJ in Traynor v McCullagh but also in other judgments such as H v Williams (above).
1974 amendments
Before the amendments, the Act provided for two entirely separate mechanisms for a person aggrieved by an order of a magistrate, being a notice to review pursuant to s 107, or an appeal pursuant to s 113. The notice to review under s 107 required a supporting affidavit showing prima facie "an error or mistake on the part of the justices on a matter or question of fact or law" as one limb, absence of jurisdiction as another, or that an order or warrant should not have been made. Only one pathway was available; s 113(7) provided that if the applicant proceeded under s 107 then he was deemed to have waived his right of appeal under s 113 and any proceedings taken by him under this section shall be deemed to be null and void. Significantly, s 113 was unfettered and the appeal was to be heard by a judge by way of rehearing: s 113(10). As noted by Crawford CJ in Traynor v McCullagh in the passage set out above at [22], such an appeal was conducted by way of a complete rehearing with witnesses who gave evidence before the justices, having to do so again before a judge. There was no filter on those cases which proceeded to rehearing. If the appeal was lodged the rehearing proceeded.
The 1974 amendments effected significant change. The provision which prevented an aggrieved person undertaking proceedings under s 107 from proceeding with an appeal by way of rehearing was deleted, and procedure introduced for an application for a hearing de novo. The new procedure involved a filter, with the Court needing to be satisfied that, having regard to all the circumstances, the interests of justice required that the complaint be reheard de novo. Another substantive change was that if applications were granted, complaints could be reheard before magistrates if considered expedient. Evidently, this addressed concerns about the costs associated with rehearings before judges. The second reading speech mentioned in the authorities I have referred to provides insight as to the purpose behind the amendments. The following extract from the speech is relevant:
"A further disadvantage which has been apparent has been the need for a would be appellant to elect at the very outset whether or not he should proceed by way of motion to review or by way of rehearing. Then again the commencement of proceedings by either one of these methods disbarred the appellant from proceeding at a later date by the other method.
The provisions of the Bill will avoid this situation by providing for only one method of appeal to the Supreme Court ie by way of motion to review. The right to a rehearing has been deleted but there has been substituted a provision giving the Supreme Court wide judicial discretion to allow the motion to review to be converted to an appeal by way of rehearing. Although the absolute right to a re-hearing has been removed, this wide judicial discretion will ensure that any appellant who can show reasonable grounds for a rehearing will in fact get one."
Some of the clause notes are relevant too:
"S111 – is new and is amplification of the power of the Supreme Court to order that a matter may be heard de novo …
ss(4) of this section empowers the Court to order that a complaint he [sic] heard de novo if having regard to all the circumstances the interests of justice requires that it should be reheard.
ss(5) sets out special circumstances in which such an order may be made and in combination with ss(4) gives very wide judicial discretion to the court.
ss(8) enables the court if it considers it expedient to order that a complaint which it considers ought to be reheard should be reheard by a magistrate.
This has been included so that matters may be reheard promptly and with the minimum of expense"
The second reading speech reveals an objective of allowing flexibility, so that a notice to review could be "converted to an appeal by way of re-hearing". It was meant that there should be wide judicial discretion in this regard. As for whether there was an intention to confine appeals by way of rehearing before judges, as mentioned by Crawford CJ in Traynor v McCullagh, the amendment introduced a new control over rehearings to the extent of a test of the interests of justice. It is interesting to note that the clause notes to s 111 describe the amendment as an amplification of the power to order that a matter be heard de novo. Significantly, I can see no indication in the terms of the amendment or the extrinsic materials that suggest that there was a confining of appeals by rehearing by a new measure of forcing aggrieved persons to assert error on the part of the justices under s 107.
Is s 107(4) a prerequisite to s 111?
In construing the provisions I should have regard to the ordinary and grammatical meaning of the words in the section, noting their context and the legislative purpose. Context has a wide meaning and includes matters such as the mischief which the statute was designed to overcome: Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27, per Hayne, Heydon, Crennan and Kiefel JJ at [47], and per French CJ at [4]. Inconvenience or improbability of result may assist the court: CIC Insurance Ltd v Bankstown Football Club Ltd (1987) 187 CLR 384 at 408. I am conscious of the statutory direction to prefer a construction that would promote the underlying purpose and object of the section in question: Acts Interpretation Act 1931, s 8A.
I begin by noting that the language of the statute does not suggest that compliance with s 107(4) is a pre-condition to the operation of s 111. The words of s 111 do not expressly require compliance with s 107(4). All that is required is a notice to review.
A consideration of the text reveals with clarity that s 111 caters for grievances that are not recognised by s 107(4). It is evident from these provisions, particularly s 111(5)(b), that error that is disclosed on materials that were not before the magistrate may, depending on the facts, be sufficient to warrant an order. The effect of s 111(5)(b) is that if the applicant was not represented by counsel, and evidence available at the time amounting to a substantial ground of defence was not then adduced, the court may make an order for a hearing de novo. As such, s 111, in its sphere of operation, can apply beyond the reach of s 107(4). The purpose of s 111 is not harmonious with an interpretation that compliance with s 107(4) is a pre-condition to its operation. Requiring an assertion of error is at odds with s 111, which identifies broader concerns of the interests of justice.
An interpretation that s 107(4) is not a prerequisite to an application under s 111 is not at odds with the mischief identified in the second reading speech, of affording flexibility to allow a notice to review to be converted to an appeal by way of rehearing. It accords with the statutory purpose of retaining the right to an appeal by rehearing, once absolute, and now allowed if required in the interests of justice.
On the related matter of whether non-compliance with s 107(4) leads to invalidity of the notice to review, I note that the legislative scheme allows for flexibility and wide powers of amendment. On the hearing of a motion to review, the Court has comprehensive power to amend grounds, including a power to strike out and add new grounds: s 108. This suggests that the legislative concern is with enabling the Court to deal with the application despite formal defects. A notice that does not identify error within s 107(4) can be amended and thus, it would seem, formulation of the grounds is not critical to validity of the notice.
The requirement for error in s 107(4) is not a mere threshold criterion for the bringing of a motion to review. It provides the statutory test of error of fact or law that governs the review: Phillips v Arnold (above) at [10]. This test is heavily laden with authority. On a review, the question is whether, upon the evidence, the magistrate might, as a reasonable person, come to the conclusion to which he or she did come: Richardson v Shipp [1970] Tas SR 105, Burbury CJ at 117. It is to be contrasted with an appeal by way of rehearing: Phillips v Arnold (above) at [10]; Australian Securities and Investments Commission v Hosken (No 2) [2000] TASSC 12, per Cox CJ.
The interpretation that compliance with s 107(4) is essential to the operation of s 111 leads to an improbable result. The consequence is a complete disconnect between the requirement in s 107(4) to assert error of fact or law, or lack of jurisdiction, and the practical outcome of an application for a de novo hearing when a new hearing of the complaint results and the issues are at large. The requirement would be for an assertion which, upon rehearing, disappears and is not ever determined. It is both pointless and unsatisfactory. The result would be a statutory scheme that would require identification of a specific error but not lead to a resolution of the identified grievance. I am most reluctant to attribute that intention to Parliament without clear words, which, in my view, are not present.
Further, the potential consequences for applicants of invoking s 107(4) in this way are arbitrary and unjust. An aggrieved party who files a notice to review with an unmeritorious assertion of error of fact or law, and a meritorious assertion of unwitting error, may apply for a hearing de novo, but not an applicant who files a notice to review with only a meritorious assertion of unwitting error.
Finally, if it is thought that s 107(4) provides a filter to a second contested hearing, then it is a filter of most dubious benefit. A mere assertion is not an effective filter, for the reasons identified by Zeeman J in H v Williams (above). In any event, there is an entirely effective and robust filter residing with the Court, and that is the interests of justice.
It is plain, in my view, that for the purpose of an application for a hearing de novo pursuant to s 111, compliance with s 107(4) and identification of a ground or grounds of the type specified within that provision, is not a prerequisite. In this case, therefore, there has not been non-compliance with an essential statutory requirement. It follows that the fact that the grounds of review do not amount to an assertion of error on the part of the magistrate within the terms of s 107(4)(a) could not, and do not, render the notice invalid.
Section 111(4): the interests of justice
The question is whether an order should be made that the complaint be heard de novo. The circumstances referred to in s 111(5) do not exist. My discretion is to be exercised by reference to s 111(4). The order should not be made unless I am satisfied that the interests of justice require it, having regard to all the circumstances of the case.
In Webster v White (No 2) (above), Zeeman J gave consideration to what is needed to satisfy this test in the context of an incompetent defence.
"5 Plainly, it is insufficient for the applicant merely to demonstrate that if his trial had been conducted differently, the outcome might have been different. With respect, I would adopt what Demack J said in Swan v R (1987) 27 A Crim R 289, at p293, as follows:
'It seems to me important to affirm that when a trial is properly conducted as the record of this trial shows occurred, a convicted person will not ordinarily be allowed a second attempt to acquire acquittal because he has not properly prepared for the first trial. It seems to me essential in the administration of justice that this rule should be regarded as one of prime importance.
It seems to me also important to affirm that when an accused person is represented by counsel he has to accept the manner in which counsel conducted the trial so that in the ordinary course it is not possible in this court to seek a new trial on the basis of counsel's conduct which inevitably involves questions of tactics and of forensic advantage.'
6 The interests of justice do not require a new trial merely because counsel does not call an available witness. I would adopt as a correct statement of principle what Hunt J said in Ristevski v R (1989) 39 A Crim R 11, at p14:
'In my view, it is not a miscarriage of justice where counsel for the accused, acting responsibly and upon apparently quite sound tactical grounds, makes a deliberate decision not to call evidence which was available at the trial to be called, notwithstanding that the accused is thereafter convicted and notwithstanding that, if that evidence had been called at the trial, the result could have been different.'"
I adopt the same approach, that the interests of justice test is met if a miscarriage of justice has been shown.
In Braslin v The Queen [2000] TASSC 133, Blow J (as he then was) considered whether there had been a miscarriage of justice under the Criminal Code, s 402(1), and a ground of appeal concerning the performance of defence counsel. His Honour at [6] referred to the judgment of Gleeson CJ in R v Birks (1990) 19 NSWLR 677 at 685 summarising the principles relevant to such appeals:
"1 A Court of Criminal Appeal has a power and a duty to intervene in the case of a miscarriage of justice, but what amounts to a miscarriage of justice is something that has to be considered in the light of the way in which the system of criminal justice operates.
2 As a general rule an accused person is bound by the way the trial is conducted by counsel, regardless of whether that was in accordance with the wishes of the client, and it is not a ground for setting aside a conviction that decisions made by counsel were made without, or contrary to, instructions, or involve errors of judgment or even negligence.
3 However, there may arise cases where something has occurred in the running of a trial, perhaps as the result of 'flagrant incompetence' of counsel, or perhaps from some other cause, which will be recognised as involving, or causing, a miscarriage of justice. It is impossible, and undesirable, to attempt to define such cases with precision. When they arise they will attract appellate intervention."
Blow J went on to note that it is well settled that those principles are applicable in Tasmania: Philpott v The Queen [1996] TASSC 57; Blake v The Queen [1997] TASSC 30.
The High Court has emphasised that the question of whether there was flagrant incompetence by defence counsel or egregious error or some other reason for the omission is relevant but as a subsidiary question to the ultimate question of whether what occurred or did not occur at the trial led to a miscarriage of justice: TKWJ v The Queen (2002) 212 CLR 124, per Gaudron J at [31], McHugh J at [75], [79] and [97]. If the court concludes that, despite the wide discretion that resides with counsel in conducting the trial, a material irregularity has occurred, and if there is a significant possibility that the irregularity affected the outcome, then a miscarriage of justice will have occurred: per McHugh J at [77] and [97]. In this context the question of whether the interests of justice require a rehearing should be answered in the affirmative if, as a consequence of the conduct of the defence, there was some material irregularity and there is a significant possibility that the outcome of the hearing was affected.
The respondent does not consent to a hearing de novo but submits that the Court will need to be satisfied that the alleged incompetence of the legal practitioner was to the degree as discussed in Braslin per Blow J at [6].
The proceedings before the magistrate
The applicant was charged with common assault in that on 2 July 2013 at Ulverstone he grabbed Stacey Taylor by the throat and held a knife up and pointed it towards her throat. A second charge of breach of a family violence order refers to the same alleged conduct as amounting to a breach of the order.
The prosecution case consisted of the evidence of the complainant, the complainant's mother Tracie Mott, some text messages between the complainant and the applicant, and the applicant's police interview. The applicant was the sole witness for the defence. The complainant and the applicant had been in a relationship and were estranged. He had moved out of the family home a few days beforehand. The prosecution case was that the applicant had attended the family home to retrieve money taken from his bank account by the complainant and, in the kitchen, had assaulted her. The complainant gave evidence as follows.
·On 2 July the complainant received a text message from the applicant asking if she had taken money out "of his bank account" and she replied, "Yes", and later, that she did so because he took her canvasses.
·Shortly after that text the applicant "turned up". She opened the door and he barged in. He asked where his money was and began going through her bag and wallet. He called the complainant a slut.
·The applicant picked up their young child and took her to her bedroom.
·He came storming back, grabbed a knife and came up to her, and was leaning over the kitchen bench. He held the knife up and held her throat and said, "I want to put this knife to the back of your throat." He held the knife approximately 3-4 inches away from her neck. He had hold of her in that position for probably 15 seconds.
·The complainant said she was scared and was trying to calm him down. He stayed most of that afternoon and they argued the whole time.
·Her mother arrived at the house and stayed for a few minutes. During that time she mouthed, "Are you okay?" to the complainant.
·The complainant received text messages from the applicant later that evening.
·Later, the complainant had a conversation on the phone with the applicant's sister, Melinda, during which she told Melinda what had happened and that a knife had been held to her throat. The complainant's mother overheard that conversation. The complainant had a conversation with her mother about what she had said on the phone.
In cross-examination it was suggested to the complainant that the applicant did not come to her house that day and did not hold a knife to her throat. She disagreed. The complainant's mother, Tracie Mott, gave evidence that on 2 July in her lunch hour, she went to her daughter's house. The applicant was at the house and the complainant had been crying, her eyes were red. Ms Mott whispered, "Are you okay?" to the complainant. One to two weeks later, she overheard her daughter having a telephone conversation. Afterwards, she asked what had happened and the complainant said that the applicant had held a knife to her throat on 2 July. In cross-examination it was suggested that her evidence about the incident on 2 July was a fabrication and she had conspired with her daughter in giving a false account. She disagreed.
In the applicant's record of interview on 31 July 2013 the allegation regarding the knife was posed, with the suggestion that it had happened on 3 July. He denied going to the house on that day, and said he had not been back to the house except for one occasion to take his belongings.
The applicant gave evidence and agreed that there had been an exchange of text messages regarding money being taken from his account for the canvasses. He denied going to the house that day.
The magistrate gave an ex tempore decision after the evidence closed. Essentially, his reasons were as follows. The central issue was whether he could be satisfied beyond reasonable doubt of the accuracy and truthfulness of the evidence of the complainant and that the incident occurred. He was so satisfied because:
·the complainant gave evidence in a persuasive and convincing way which was not undermined by cross-examination; and
·her evidence was corroborated by:
o her mother, who gave an internally consistent account; and
o the text messages which strongly suggested that the applicant was at the house and there had been interaction on 2 July, and were consistent with the incident described by the complainant.
The applicant was convicted and sentenced to a term of 8 months' imprisonment. He was admitted to bail pending the filing of a notice to review and has been on bail since.
The affidavits
The applicant relied on three affidavits in order to demonstrate that a rehearing was in the interests of justice. One of the affidavits was from the applicant, one from his sister, Melinda Batten (referred to as Melinda Coppleman in the particulars of this ground of review), and one from his father, Ross Coppleman. The legal practitioner representing the applicant at the hearing filed an affidavit in response. All affidavits were admitted de bene esse and the deponents were not cross-examined. The respondent's counsel agreed to the affidavits being admitted on that provisional basis, with the rider that he reserved his position as to whether, at a rehearing, some of the evidence may be objected to as inadmissible.
It is evident from the applicant's affidavit that the substantive complaint was that he had informed his legal practitioner that his father and sister were available as witnesses, but they had not been called. There was a grievance about text messages and the transcript of his police interview not being made available to him in advance of the hearing. He did not assert any particular consequence arising from the failure to provide him with the transcript of the police interview, such as a lost opportunity to object to it being admitted. He said that, when he was cross-examined, he found it difficult to follow the text messages because he had not been provided with a copy prior to court. In the applicant's affidavit, he said that he showed his lawyer a video recording of his sister speaking to the complainant. Further, he said that he arranged for his father and sister to both attend court on the day of the hearing.
The applicant's sister, Melinda Batten, gave details in her affidavit of a phone call from the complainant, alleging that her brother had held a knife to her throat. She said that, during that call, the complainant said that, "Paul will learn respect", that she would send him to gaol and that, "Paul fucking did hold a knife" to her and that this occurred at Jungle Gyms. Later in this conversation, the complainant said that the applicant held a knife to her at her house over a kitchen bench, and later, said it was while she was leaning back over a couch. Part of the conversation was recorded by Ms Batten's daughter using her mobile phone. She arranged for a copy of that recording to be sent to the applicant. She attended court on the date of the hearing but was not spoken to by the applicant's lawyer.
The applicant's father provided an affidavit in which he gave an alibi account. He stated that there was an occasion when his son was upset that the complainant had taken all of his money from his bank account. They had a conversation about the applicant speaking to the police. The applicant was at his house for a few hours from a time before 12 noon on that date. On a different date, he had gone with his son to the complainant's home to help him collect his property, and the complainant was not present. He was not spoken to by the applicant's lawyer when he attended court on the date of his son's hearing.
The legal practitioner provided an affidavit in which he stated that he remembered receiving instructions, but could not recall the detail of them, and he did not make many notes. The applicant had shown him a mobile phone with a video recording of his sister and the complainant. He could not recall whether he was instructed to call the two witnesses, Melinda Batten and Ross Coppleman. He stated that, as best he could recall, he decided not to call Melinda Batten because it was contrary to the applicant's account, being a denial of holding a knife to the complainant's throat. He formed the view that her account only reinforced the police case. In his affidavit he did not mention her assertions that the complainant gave inconsistent versions about the incident.
In his affidavit, the legal practitioner did not explain why he did not call Ross Coppleman as a witness at the hearing. I note the particulars of the two charges in original form provided that the date of the alleged assault was 3 July. In preparing for the hearing, the practitioner had made inquiries with another alibi witness with respect to the applicant's movements on 3 July, but that was unproductive. On the morning of the hearing, the particulars were amended to 2 July. In his affidavit, he did not suggest that he considered calling Ross Coppleman as a witness, or that he was aware he could give alibi evidence, or knew that he was available at court to give evidence. As for the text messages, he stated that he rang the applicant about the text messages after they were delivered, but he did not go through them in detail before they were tendered to the court. It was unclear on the affidavit whether he went through them at all.
Conclusion
In relation to the decision made by the legal practitioner not to call Melinda Batten as a witness, there is limited detail in the affidavit material about what was disclosed to him about the evidence she could give to enable a scrutiny of that decision. There is an apparently rational reason for not calling her, although, depending on the full circumstances, minds may differ about that decision. As for the text messages, it seems that the defendant was not as well prepared for cross-examination as he might have been if he had had the chance to consider the messages. However, in the circumstances of this case, I do not regard that as an irregularity of the kind that could have given rise to a significant possibility of a miscarriage of justice.
The potential alibi evidence falls into a different category. There is the prospect that, if accepted, and if regarded as accounting for the applicant's whereabouts and providing an alibi covering the relevant period when the applicant was said to have been at the complainant's house, it would lead to an acquittal. The impact of this evidence would, of course, turn on the court's assessment of it and considerations such as the detail of the witness' evidence regarding his observations and the credibility and reliability of the witness. All of these matters are best considered in the context of the hearing of the complaint, rather than in these proceedings.
The applicant's legal practitioner did not give consideration to the alibi evidence and calling Ross Coppleman as a witness. Whilst there may be a reason for his failure to consider this evidence, given the late amendment to the complaint and that he may have been taken by surprise, the situation is that he did not make a decision about the alibi evidence, rational or otherwise, or even advert to it. I regard this as being an omission by counsel which carries with it the significant possibility that it affected the outcome of the trial. The case may have been conducted in a way that was productive of injustice. In these circumstances, I am satisfied that it is in the interests of justice that the application for a hearing de novo be granted.
Outcome
An order that the complaint be heard de novo shall be made. The orders of conviction and sentence ought to be quashed to enable that hearing to proceed. Further, pursuant to s 111(8), I consider it expedient that the complaint be reheard by a magistrate, rather than take place in this Court.
Accordingly, I make the following orders: that the orders of conviction and sentence made against the applicant on complaint 53074/13 be quashed. Further, that the complaint be reheard de novo by another magistrate on a date to be fixed.
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