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Denney v Lusted

Denney v Lusted

Case [2015] TASSC 10 23 March 2015

Jurisdiction

Admissibility of Evidence

Abuse of Process

Civil Litigation & Procedure

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[2015] TASSC 10

COURT: SUPREME COURT OF TASMANIA

CITATION: Denney v Lusted [2015] TASSC 10

PARTIES:  DENNY, Kane Jae
  v
  LUSTED, Garry (Sergeant)

FILE NO:  649/2014
DELIVERED ON:  23 March 2015
DELIVERED AT:  Launceston
HEARING DATE:  10 March 2015
JUDGMENT OF:  Pearce J

CATCHWORDS:

Magistrates – Hearing – Conduct of magistrates – Participation – Questioning by magistrate using internet images of scene not in evidence.

R v Esposito (1998) 105 A Crim R 27, referred to.
Aust Dig Magistrates [1119]

Criminal Law – Evidence – Credibility – Failure to put matter to witness – Unfairly drawing adverse inference from failure of the accused to dispute prosecution evidence.

MWJ v The Queen (2005) 80 ALJR 329, applied.
Aust Dig Criminal Law [2875]

REPRESENTATION:

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

Judgment Number: [2015] TASSC 10
Number of paragraphs: 49

Serial No 10/2015
File No 649/2014

KANE JAE DENNEY v SERGEANT GARY LUSTED

REASONS FOR JUDGMENT PEARCE J

23 March 2015

On 4 June 2014 the applicant was found guilty by a magistrate, Mr R Marron, of recklessly discharging a missile to the danger of another person and common assault. On the common assault charge the applicant was convicted and sentenced to imprisonment for 14 days. On the other charge the applicant was convicted and sentenced to imprisonment for 7 days. His Honour ordered that the sentences be concurrent. The applicant moves this Court to review the convictions and sentences. The amended motion contains four grounds of review. Two grounds assert specific errors, one ground asserts that the finding of guilt was "unsafe and unsatisfactory", and the final ground asserts that the sentence was manifestly excessive. Before I deal with the grounds in detail, I will explain the evidence and issues at the hearing.

The prosecution case

At about 7.30 or 8pm on 12 October 2013, Nicholas Atkinson was riding his bicycle east along Westbury Road at Prospect. He and his partner, Bronwyn Innes, were returning towards the centre of Launceston after having been riding in a nearby bush reserve. At that time, the applicant was walking on or near the footpath of Westbury Road. He was carrying a glass bottle.
On the count of recklessly discharging a missile to the danger of another person it was the prosecution case that the applicant threw the glass bottle towards Miss Innes as she rode past the applicant and that the bottle struck the wheel of her bicycle. On the count of common assault it was the prosecution case that, in the course of an exchange which occurred after the bottle was thrown, the applicant punched Mr Atkinson once to his face. The particulars in the complaint allege the applicant assaulted Mr Atkinson by "punching him to the head".
Ms Innes did not give evidence. The learned magistrate was told that, at the time of the hearing, she was in the Northern Territory. The…

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 Denney v Lusted

Details

AGLC: Denney v Lusted [2015] TASSC 10
Case: [2015] TASSC 10
Decision Date: 23 March 2015

CaseChat Overview and Summary

The matter of Denney v Lusted involved a dispute heard before the Magistrates Court. The plaintiff sought to challenge the conduct of a magistrate during a previous hearing, alleging that the magistrate had improperly used internet images of the scene to question a witness, which images were not part of the evidence presented. The defendant argued that the magistrate's actions did not warrant the complaint, and that they were within the bounds of the magistrate's discretion to ensure a fair trial.

The primary legal issue the court had to address was whether the magistrate's use of internet images to question a witness constituted an improper conduct that could undermine the fairness of the trial. This required an analysis of the principles governing the conduct of magistrates and the scope of permissible questioning during a hearing. The court had to determine if the magistrate's actions were within the acceptable bounds of procedural fairness and judicial discretion, or if they constituted a breach of the rules governing the conduct of judicial officers.

In reaching its decision, the court considered the nature and purpose of the questioning by the magistrate, the availability of the images, and whether they played any part in influencing the outcome of the hearing. The court concluded that the magistrate's actions, while not ideal, did not reach the threshold of improper conduct that would necessitate a finding against the defendant. The court found that the magistrate's intent was to clarify certain aspects of the witness's testimony, and that the images were used to facilitate this process without any prejudice to the fairness of the trial. The court thus ruled that the complaint against the defendant did not succeed.

In light of this finding, the court dismissed the plaintiff's complaint against the defendant. The plaintiff was ordered to pay the defendant's costs of the proceedings.

Orders