Hanel v Shoemark - [2010] ACTSC 67

DARRYL ANDREW HANEL v JOEL SHOEMARK
[2010] ACTSC 67 (15 July 2010)

APPEAL – appeal from Magistrates Court – nature of appeal.
APPEAL – appeal from finding of guilt – turns on its own facts – no issue of principle

Crimes Act 1900 (ACT), s 116(3), 375
Magistrates Court Act 1930 (ACT), s 208(1), Div 3.10.2, Pts 3.6, 3.7, 3.10,

Baker v Thorpe (1985) 62 ACTR 1
Campbell v Fortey (1987) 85 FLR 462
Theodorelos v Nexus Projects Pty Ltd [2009] ACTSC 149
Fox v Percy (2003) 214 CLR 118
Lukatela v Birch (2008) 223 FLR 1

ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

No. SCA 50 of 2009

Judge: Refshauge J
Supreme Court of the ACT

Date: 15 July 2010

IN THE SUPREME COURT OF THE )
) No. SCA 50 of 2009
AUSTRALIAN CAPITAL TERRITORY )

BETWEEN:DARRYL ANDREW HANEL
Appellant

AND:JOEL SHOEMARK
Respondent

ORDER

Judge:  Refshauge J
Date:  15 July 2010
Place:  Canberra

THE COURT ORDERS THAT:

The appeal be dismissed.

The conviction and sentence of the Magistrates Court made on 13 October 2009 be confirmed.

Darryl Andrew Hanel, the appellant, appears for himself as he did at the trial before the learned Magistrate of the charge against him of damaging property.

While he is, of course, entitled to do so, the presentation of his case may be hampered by him doing so. The court is obliged, and rightly so, to ensure that the trial is fair but can rarely make up for deficiencies caused by matters such as lack of evidence that may assist the litigant’s case, lack of effective cross-examination to weaken or undermine the case for the other party or case preparation with an appropriate case theory that can assist in the effective presentation of the case at trial.

Here, Mr Hanel was emphatic that he had not caused the damage that was the subject of the charge against him, but the strength of the assertion of that belief can only take his case so far.

The background

The basic facts around this case were not substantially in dispute, though I will summarise the evidence later.

The street in which Mr Hanel lives is not really a cul-de-sac but, at one end, the street goes straight into his driveway with, it appears, two car parks beside it. It is not, therefore, what might be called a “through street”, a street connecting at its end with another street. The neighbouring house has a driveway to the left of Mr Hanel’s driveway.

On the night in question, 5 November 2008, the complainant visited her friends who lived in the neighbouring house. There were already four cars in two rows parked in that driveway and she parked behind the right-hand side line of cars. It appears that her parked car did obstruct, or may have obstructed, Mr Hanel’s driveway.

Mr Hanel came out, saw the car and became very upset. He expressed himself in strong language, swearing and using obscenities. He had…

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 Hanel v Shoemark

Details

AGLC: Hanel v Shoemark [2010] ACTSC 67
Case: [2010] ACTSC 67
Decision Date: 15 July 2010

CaseChat Overview and Summary

The appeal was brought before the court by Hanel against Shoemark. The dispute originated in the Magistrates Court, where Shoemark was found guilty and Hanel sought to appeal this decision. The central issue for the appeal was whether the Magistrates Court had erred in its findings of fact, which would then affect the guilt of Shoemark.

The court examined the nature of the appeal, considering whether it involved any issue of principle or if it was solely dependent on the specific facts of the case. The appeal was not grounded on a broader legal principle but rather on a challenge to the factual findings made by the Magistrates Court. The court assessed whether there was any error in the process of determining the facts that could have led to an unjust outcome.

Upon reviewing the evidence and the process of the Magistrates Court, the court concluded that there was no miscarriage of justice or error in the factual determinations. The appeal was therefore dismissed, as it did not involve any issue of principle but rather a disagreement with the specific factual findings made by the Magistrates Court. Consequently, the decision of the Magistrates Court was upheld.

The appeal was dismissed, and the findings of guilt against Shoemark were affirmed. No further orders were made beyond the dismissal of the appeal.

Orders

Orders of the court

The appeal be dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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