Gahan v Kerr - [2018] TASSC 63

[2018] TASSC 63

COURT: SUPREME COURT OF TASMANIA

CITATION: Gahan v Kerr [2018] TASSC 63

PARTIES:  GAHAN, Pamela
  v
  KERR, Philip

FILE NO:  3669/2017
DELIVERED ON:  14 December 2018
DELIVERED AT:  Launceston
HEARING DATE:  13 June 2018
JUDGMENT OF:  Pearce J

CATCHWORDS:

Magistrates – Appeal and review – Tasmania – Motion to review – Other matters – Appeal against finding of guilt on one count of common assault – Finding of guilt reasonably open to the magistrate.

Phillips v Arnold [2009] TASSC 43, 19 Tas R 21, applied.
Aust Dig Magistrates [1349]

REPRESENTATION:

Counsel:
             Applicant:  G Barnes
             Respondent:  S Nicholson
Solicitors:
             Applicant:  Paggett & Associates
             Respondent:  Director of Public Prosecutions

Judgment Number: [2018] TASSC 63
Number of paragraphs: 43

Serial No 63/2018
File No 3669/2017

PAMELA GAHAN v PHILIP KERR

REASONS FOR JUDGMENT PEARCE J

14 December 2018

This motion to review challenges the decision of the learned Chief Magistrate, Ms C Geason, made on 12 December 2017, to find the applicant guilty of one count of common assault. For the reasons which follow the motion will be dismissed.

The charges

In November 2016 the applicant was engaged by Angela Triffitt as a nanny to care for her two children, Declan, then aged 7, and Isabella, then aged 6. The engagement commenced on 14 November 2016 and ceased on 28 November 2016. In January 2017 the applicant was charged on complaint with five counts of common assault. Four counts alleged that the applicant had assaulted Isabella; on 18 November 2016 by pinching her, on 21 November by pulling her hair, on 24 November by pushing her in the back, and on 28 November by pushing her in the head. The fifth count charged the applicant with assaulting Declan on 28 November 2016 by "pushing him under the chin and pushing his head back". On 12 December 2017 her Honour dismissed the charges concerning Isabella, but found the count which concerned Declan proved.

The motion to review

There are two grounds of the motion. The first ground is directed to the sufficiency of the evidence to justify her Honour's determination, and asserts that in finding the charge of assaulting Declan proved beyond reasonable doubt, the magistrate "erred in fact and in law". The second ground asserts that the magistrate erred in fact and in law in finding that the evidence given by Declan was "consistent throughout". A motion of this nature is not an appeal by way of rehearing. The applicant must show an error or mistake on the part of the magistrate on a matter or question of fact alone, or of law alone, or of both fact and law. It is not for the judge conducting the review "to weigh the evidence and reach his or her own conclusions": Nilsson v McDonald [2009] TASSC 66, 19 Tas R 173, per Blow J (as he then was) at [59]; Kent v Gunns Limited[2009] TASSC 30, 18 Tas R…

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 Gahan v Kerr

Details

AGLC: Gahan v Kerr [2018] TASSC 63
Case: [2018] TASSC 63
Decision Date: 14 December 2018

CaseChat Overview and Summary

Gahan v Kerr involved a dispute between the appellant, Gahan, and the respondent, Kerr, where the appellant appealed against a finding of guilt on one count of common assault. The case was initially heard in the Magistrates Court of Tasmania, and the appeal was heard by the Supreme Court of Tasmania. The appellant argued that the finding of guilt was not reasonably open to the magistrate, while the respondent maintained that the finding was correct and within the bounds of the evidence presented.

The legal issues the court was required to decide included whether the finding of guilt on the count of common assault was open to the magistrate, based on the evidence and the applicable legal standards. The court had to consider the principles of review of a magistrate's decision, the standard of proof, and the scope of appellate review in relation to findings of fact. The court also needed to examine the evidence presented in the original proceedings and assess whether the magistrate's findings were supported by that evidence.

The court reasoned that the finding of guilt was reasonably open to the magistrate, given the evidence presented. The court held that the magistrate had properly considered the evidence and applied the correct legal standards. The court found that the evidence supported the conclusion that the appellant had committed the offence of common assault, and that the magistrate's finding of guilt was not erroneous or unreasonable. The court concluded that the appeal should be dismissed, as the finding of guilt was reasonably open to the magistrate.

As a result of the court's decision, the appeal was dismissed, and the finding of guilt on the count of common assault stood. The court did not make any further orders in relation to the case.

Orders