Hawker v White - [2005] TASSC 60

[2005] TASSC 60

CITATION: Hawker v White [2005] TASSC 60

PARTIES: HAWKER, Therin Wayne

v
TAWS, Jayson
HAWKER, Therin Wayne
v
WHITE, Graham

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  APPELLATE
FILE NO/S:  LCA 26/2004
DELIVERED ON:  4 July 2005
DELIVERED AT:  Hobart
HEARING DATE:  23 June, 4 July 2005
JUDGMENT OF:  Evans J

CATCHWORDS:

Magistrates – Appeals from and control over magistrates – Tasmania – Motion to review - When remedy available – Denial of natural justice an error.

Schreuder v Australian Securities Commission (1996) 6 Tas R 223; Kioa v West (1985) 159 CLR 550, referred to.
Justices Act 1959 (Tas), ss107(4)(a) and 110(2).
Aust Dig Magistrates [270]

REPRESENTATION:

Counsel:
           Applicant:  In Person
           Respondent:  S J Bender
Solicitors:
           Appellant:  In Person
           Respondent:  Director of Public Prosecutions

Judgment Number: [2005] TASSC 60
Number of paragraphs: 7

Serial No 60/2005
File No LCA 26/2004

THERIN WAYNE HAWKER v JAYSON TAWS
THERIN WAYNE HAWKER v GRAHAM WHITE

REASONS FOR JUDGMENT EVANS J

4 July 2005

The applicant seeks a review of his conviction on a charge of assault and the global sentence imposed on him in respect of that conviction, and his convictions on his plea of guilty to a charge of trespass, a charge of destroying property and a charge of breaching a restraint order.

Save for the charge of breaching a restraint order, the charges relate to events that occurred on 22 June 2003 at or in the vicinity of the then residence of Catherine Peart. In very brief summary, on that day the applicant entered Mrs Peart's home unannounced and demanded to see her son David, who was not then present. Mrs Peart, who has been wheelchair bound for 18 years, guided the applicant from her home, but he returned as David drove onto her property, at which time the applicant smashed the rear window of David's vehicle with a baseball bat. Notwithstanding that Mrs Peart told the applicant not to enter her property, he did so, bashed the letterbox and smashed the front windscreen of David's vehicle with the baseball bat.

The applicant's pleas of guilty relate to the damage he caused to the front and rear windows of the vehicle and the letterbox, and his entry onto Mrs Peart's property at that time. His plea of not guilty to the charge of assault relates to an allegation by Mrs Peart that as the applicant passed her upon entering her property, he struck her to the side of the face with his left hand.

The first ground of the notice to review amounts to a complaint that in proceeding to hear and determine the charge of assault on 16 July 2004, the learned magistrate erred by denying the applicant natural justice in the following circumstances:

·Prior to 16 July 2004, the applicant and his legal representative had appeared in the court of petty sessions in relation to the three charges referable to the incident on 23 June 2003 on four occasions, the applicant having pleaded…

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 Hawker v White

Details

AGLC: Hawker v White [2005] TASSC 60
Case: [2005] TASSC 60
Decision Date: 4 July 2005

CaseChat Overview and Summary

The case of Hawker v White involved an appeal against a decision made by a magistrate in Tasmania. The nature of the dispute centred on the magistrate's handling of a motion to review a decision. The parties involved were Hawker, the appellant, and White, the respondent. The appeal was brought to the Supreme Court of Tasmania.

The primary legal issues the court had to decide were whether the remedy of review was available in the circumstances and whether the denial of natural justice constituted an error warranting a review. The court examined the procedural fairness and the grounds upon which the magistrate had made the decision, assessing whether the principles of natural justice had been adhered to.

The court found that the remedy of review was indeed available under the circumstances. It determined that the magistrate's failure to follow the principles of natural justice amounted to an error. This error was deemed significant enough to warrant the intervention of the Supreme Court. The court concluded that the magistrate's decision should be quashed and remitted back to the original court for reconsideration with proper adherence to natural justice principles.

The final orders of the court included the quashing of the magistrate's decision and the direction that the matter be remitted to the original court for reconsideration in accordance with the principles of natural justice.

Orders