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Fenton v Lane

Fenton v Lane

Case [2015] TASSC 61 10 December 2015

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[2015] TASSC 61

COURT: SUPREME COURT OF TASMANIA

CITATION: Fenton v Lane [2015] TASSC 61

PARTIES:  FENTON, Darren John
  v
  LANE, Sergeant Richard

SUNDRAM, Lakshmi

FILE NO:  120/2015
DELIVERED ON:  10 December 2015
DELIVERED AT:  Hobart
HEARING DATE:  12 August 2015
JUDGMENT OF:  Wood J

CATCHWORDS:

Magistrates – Appeal and review – Tasmania – Motion to review – Other matters – Indecent assault – Error of law and or relating to facts – Sufficiency of reasons – Whether magistrate erred in not giving adequate consideration to reliability of complainants, separate from issue of honesty.

Police Offences Act 1935 (Tas), ss 35(3).
Criminal Code (Tas), s 127(1).
Douglass v The Queen (2012) 290 ALR 699; Cawthray v The Queen [2013] NSWCCA 105; Phillips v Arnold (2009) 19 Tas R 21; Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247, considered.
Aus Dig Magistrates [1349]

REPRESENTATION:

Counsel:
             Applicant:  G Stevens
             Respondents:  J Rudolf
Solicitors:
             Applicant:  E R Henry Wherrett & Benjamin
             Respondents:  Acting Director of Public Prosecutions

Judgment Number: [2015] TASSC 61
Number of paragraphs: 70

Serial No 61/2015
File No 120/2015

DARREN JOHN FENTON v SERGEANT RICHARD LANE and
LAKSHMI SUNDRAM

REASONS FOR JUDGMENT WOOD J

10 December 2015

The applicant pleaded not guilty to two charges of assault with indecent intent and one charge of indecent assault. The three charges involve two complainants, MS and IR, who were both 13 years of age. The two charges relating to the complainant, MS are as follows:
"Date of Offence: 27/1/14
Charge Indecent Assault
Breach of: Section 127 (1) Criminal Code, 1924.
PARTICULARS: You are charged with, on the 27^th January, 2014 at Dolphin Sands in Tasmania, unlawfully and indecently assaulting another person namely, [MS], by touching her breasts, both over and underneath her clothing and touching her body underneath her shorts.
AND FURTHER: 2 –
CHARGE: Assault with indecent intent.
BREACH OF: Section 35(3) Police Offences Act, 1935.
PARTICULARS: You are charged with on the 27^th January, 2014 at Dolphin Sands in Tasmania, with indecent intent, assaulting [MS], by touching her with your hand on her breasts over her clothing."
The single charge relating to IR is one of assault with indecent intent and is as follows:
"Date of Offence: 27/1/14
Charge Assault with indecent intent.
Breach of: Section 35 (3) Police Offences Act, 1935.
Particulars: You are charged with on the 27^th January, 2014 at Dolphin Sands in Tasmania, with indecent intent, assaulting [IR], by touching her with your hand on her breasts over her clothing."
The three charges were heard together, the applicant having elected to be dealt with summarily on the charge of indecent assault. The hearing was conducted before Chief Magistrate Mr M Hill, and occupied three days over the course of three months. The first sitting day was on 16 July 2014 and the last day when evidence was received was on 9 October 2014. The parties provided written submissions and subsequently,…

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 Fenton v Lane

Details

AGLC: Fenton v Lane [2015] TASSC 61
Case: [2015] TASSC 61
Decision Date: 10 December 2015

CaseChat Overview and Summary

In the matter of Fenton v Lane, the appellant sought a review of a decision made by a magistrate in Tasmania, which involved a conviction for indecent assault. The appellant contested the decision, arguing that the magistrate had failed to provide sufficient reasons for the conviction, particularly in terms of the reliability of the complainants' testimonies, separate from their honesty. The primary issue before the court was whether the magistrate erred in not giving adequate consideration to the reliability of the complainants' testimonies, distinct from the issue of their honesty. This required the court to examine the sufficiency of the reasons provided by the magistrate and whether there was a material error in the process of assessing the evidence.

The court considered the standard of review applicable to the magistrate's decision, which required the court to determine if there was an error of law or a significant error relating to the facts. In assessing the magistrate's decision, the court needed to ensure that all relevant factors had been properly considered and that the conclusions drawn were supported by the evidence. The court emphasised the importance of distinguishing between the reliability of the complainants' testimonies and their honesty, as these are separate issues that require distinct considerations. The court's role was to ensure that the magistrate had adequately addressed both aspects in reaching the final decision.

Upon review, the court found that the magistrate had not sufficiently addressed the reliability of the complainants' testimonies, separate from their honesty. The court held that this constituted a material error in the decision-making process. Consequently, the court allowed the appeal and quashed the conviction, highlighting the need for the magistrate to provide clear and comprehensive reasons that properly considered all relevant factors. The court's decision underscored the importance of meticulous evaluation of evidence, particularly in cases involving sensitive matters such as indecent assault.

The final orders of the court included the quashing of the conviction and the referral of the matter back to the original magistrate for re-assessment, with specific instructions to consider the reliability of the complainants' testimonies, separate from their honesty, and to provide detailed reasons for any conclusions reached.

Orders