Harrison v Cattanach
[2014] ACTSC 270
•2 October 2014
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Harrison v Cattanach |
Citation: | [2014] ACTSC 270 |
Hearing Date(s): | 2 October 2014 |
DecisionDate: | 2 October 2014 |
Before: | Burns J |
Decision: | See [4] – [5] |
Category: | Principal judgment |
Catchwords: | EVIDENCE LAW – Judicial Discretion to Admit or Exclude Evidence – Evidentiary Matters Relating to Witnesses – whether witness competent to give unsworn evidence pursuant to s 13 (5) Evidence Act 2011 (ACT) APPEAL – Appeals from and Control over Magistrates – appeal upheld |
Legislation Cited: | Evidence Act 2011 (ACT) s 13 |
Parties: | Rachel Anne Harrison (Appellant) Lyndall Cattanach (Respondent) |
Representation: | Counsel Mr Edmonds (Appellant) Ms Campbell (Respondent) |
| Solicitors Paul Edmonds & Associates (Appellant) Director of Public Prosecutions (Respondent) | |
File Number: | SCC 9 of 2014 |
Decision under appeal: | Court/Tribunal: ACT Magistrates Court Before: Chief Magistrate Walker Date of Decision: 21 November 2013 Case Title: Cattanach v Harrison Court File Number(s): CC12/11118; CC12/11119 |
Burns J:
This is an appeal against convictions and sentences imposed by the Chief Magistrate on 21 November 2013 for two charges of common assault which allegedly occurred on 23 December 2012 following a hearing in the ACT Magistrates Court on 11 September 2013. The basis of the appeal is that the hearing in the Magistrates Court was not according to law in that the Chief Magistrate did not properly apply the provisions of s 13 (5) of the Evidence Act 2011 (ACT) (the Evidence Act) to the witness Danielle Harrison. The respondent properly concedes that the Chief Magistrate made this error and agrees that this aspect of the appeal should be upheld.
As I understand it, Danielle Harrison was called to give evidence in the Magistrates Court and the Chief Magistrate determined that she was not competent to give sworn testimony. The Chief Magistrate, purporting to rely upon the provisions of s 13 of the Evidence Act, allowed the witness, Danielle Harrison, to give what was said to be unsworn testimony. Before a witness who is not competent to give sworn testimony may be found competent to give unsworn evidence pursuant to s 13, the court must tell that person three things: first, that it is important to tell the truth; secondly, that that person may be asked questions that the person does not know, or cannot remember, the answer to, and that the person should tell the court if that happens; and thirdly, that the person may be asked questions that suggest certain statements are true or untrue and that the person should agree with the statements that the person believes are true and should feel no pressure to agree with statements that the person believes are untrue. Unfortunately, the Chief Magistrate did not comply with the provisions of s 13 (5) of the Evidence Act in that she did not advise the proposed witness of those matters which the section required her to advise the witness of. In the circumstances, the Chief Magistrate received evidence from a person who was not competent to give evidence in the proceedings. In my opinion, consistent with a number of authorities which are referred to in the very helpful submissions of the appellant, the proceedings before the Chief Magistrate was not a trial according to law.
The respondent has sought to argue that in the present appeal, being a rehearing, I can make my own determination about the question of the guilt of the appellant with respect to these charges. In my opinion, that is neither a course available to this Court as a matter of law nor is it an appropriate course to adopt with respect to these proceedings. The simple fact is that the proceedings before the Chief Magistrate did not constitute a trial according to law. The appellant was entitled to such a trial. In my opinion, this Court cannot in any appeal from the proceedings in the Magistrates Court purport to conduct a trial in relation to the charges against the appellant. To do so would effectively be to conduct the proceedings at first instance, because there was no trial according to law conducted in the Magistrates Court. In any event, it would be inappropriate to adopt that course because it is clear that in the present proceedings, credibility was a very significant issue. It is clear from the reasons given by the Chief Magistrate that she took into account in determining the question of the appellant’s guilt or innocence the material placed before her by Danielle Harrison. It is simply not possible for this Court to unravel those matters which weighed upon the Chief Magistrate in making her determination and in particular to what extent the material which was placed before her by Danielle Harrison was taken into account in determining issues of credibility. As such, it would be entirely inappropriate for this Court to simply adopt the findings of credibility made by the Chief Magistrate and I am not in a position to make my own findings with respect to credibility, not having seen or heard the evidence.
The appeals must be upheld. The convictions and sentences must be set aside and the proceedings must be remitted to the Magistrates Court for further hearing before a different magistrate. I think it is appropriate that it goes before a different magistrate simply because findings as to credibility that were adverse to the appellant were made by the Chief Magistrate at the time of the hearing on 11 September 2013.
I will order that the respondent pay the appellant’s costs of today’s appeal and I want to thank the parties for their very helpful submissions. The matter has proceeded very expeditiously because I was made aware of the issues by the written submissions that have been filed by the parties.
| I certify that the preceding five [5] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Burns. Associate: Date: |
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