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De La Motte v Chenery

De La Motte v Chenery

Case [2024] TASSC 53 22 October 2024

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[2024] TASSC 53

COURT:	SUPREME COURT OF TASMANIA
CITATION:	De La Motte v Chenery [2024] TASSC 53
PARTIES:	DE LA MOTTE, Glenn
v
CHENERY, John Michael
FILE NO:	2376/2023
DELIVERED ON:	22 October 2024
DELIVERED AT:	Hobart
HEARING DATE:	19 February 2024
JUDGMENT OF:	Brett J
CATCHWORDS:

Magistrates – Appeal and review – Tasmania – Motion to review – Other matters – Held magistrate made no error in dealing with breaches of Browne v Dunn – Magistrate did not demonstrate actual or apprehended bias - Magistrate acting reasonably was entitled to be satisfied of guilt beyond reasonable doubt – No opportunity to consider case on alternative basis of liability - Magistrate had appropriate regard in the circumstances to applicant's disability when giving evidence.

Aust Dig Magistrates [1349]

Legislation:
Justices Act 1959, s 107, s 31(1), s 31(2)

Evidence (Children and Special Witnesses) Act 2001, s 8(1)

Cases:
Browne v Dunn (1893) 6 R 67
Carlsen v Wilkie [2018] TASSC 1
Charisteas v Charisteas [2021] HCA 29
Cuthbert v Coates [2018] TASSC 7
Ebner v Official Trustee in Bankruptcy [2000] HCA 63, 205 CLR 337
Hofer v The Queen [2021] HCA 36, 274 CLR 35
McCarthy v Xiong [1993] TASSC 48
R v Griffis (1996) 67 SASR 170

Wickham v Cole [1957] TASStRp 10, Tas SR 111

REPRESENTATION:

Counsel:

Applicant: In person
Respondent: No appearance

Judgment Number:	[2024] TASSC 53
Number of paragraphs:	48

Serial No 53/2024 File No 2376/2023

GLENN DE LA MOTTE v JOHN MICHAEL CHENERY

REASONS FOR JUDGMENT

BRETT J
22 October 2024

1 On 14 August 2023, Magistrate Cure heard a complaint which charged the respondent with one count of assaulting the applicant. The respondent had pleaded not guilty. At the conclusion of the contested hearing, her Honour held that the charge had not been proved and dismissed the complaint. The applicant now moves this Court to review that order, pursuant to s 107 of the Justices Act 1959.
2 There is no question that the applicant has standing to bring this motion. As the person alleged to have been assaulted by the respondent, he is clearly a "person aggrieved" by the magistrate's decision to dismiss the charge. McCarthy v Xiong [1993] TASSC 48.
3 The prosecution case was that the assault had occurred during a confrontation between the two men which took place at a rural property occupied by a female friend of the applicant, Ms Chenery. The respondent was at that time Ms Chenery's husband. There had been a breakdown of the marriage, and consequent proceedings between those parties in the Federal Circuit and Family Court (the FCFC). An order had been made in those proceedings which permitted the respondent to attend the property on the day of the alleged assault between the hours of 9am and 5pm for the purpose of collecting his personal property. The order provided that Ms Chenery was to vacate the premises during that time but the applicant was…

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 De La Motte v Chenery

Details

AGLC: De La Motte v Chenery [2024] TASSC 53
Case: [2024] TASSC 53
Decision Date: 22 October 2024

CaseChat Overview and Summary

De La Motte v Chenery involves an appeal against a decision made by a magistrate in the Tasmanian Magistrates Court. The appellant, De La Motte, sought a review of a decision made by the magistrate regarding breaches of the principles set out in Browne v Dunn. The primary concern was whether the magistrate erred in their handling of the case, demonstrated actual or apprehended bias, and whether they reasonably assessed guilt beyond reasonable doubt. Additionally, the appeal questioned if the magistrate provided an opportunity to consider the case on an alternative basis of liability and if the magistrate appropriately considered the applicant's disability during the proceedings.

The court was required to determine whether the magistrate made any procedural errors in the handling of the case, particularly concerning the principles in Browne v Dunn. It also needed to assess if the magistrate demonstrated actual or apprehended bias and whether they reasonably satisfied themselves of guilt beyond reasonable doubt. Furthermore, the court needed to consider if there was an opportunity to address the case on an alternative basis of liability and whether the magistrate appropriately considered the applicant's disability when assessing the case.

The court found that the magistrate did not make any errors in dealing with the breaches of Browne v Dunn and did not demonstrate any actual or apprehended bias. The court held that the magistrate was entitled to be satisfied of guilt beyond reasonable doubt and that the opportunity to consider the case on an alternative basis of liability was not required. Additionally, the magistrate had appropriately considered the applicant's disability when giving evidence. The court concluded that the magistrate acted reasonably and within their jurisdiction, thus dismissing the appeal.

The court dismissed the appeal and confirmed the decision of the magistrate. The appellant was not granted any further relief, and the original decision stood. The court's ruling emphasised the importance of procedural fairness and the appropriate consideration of a defendant's circumstances, while also reinforcing the magistrate's discretion in such matters.

Orders