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

1. 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.

1. 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. 

1. 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.

1. 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 not guilty to all three charges.

·On 6 April 2004, the three charges were listed for hearing on 16 July 2004.

·On 3 July 2004, on the instigation of Sergeant Groves of the prosecution section, the applicant had a discussion with the sergeant to the effect that if the applicant pleaded guilty to the trespass and damage to property charges, the assault charge would be dropped.  The applicant's understanding is that this was then agreed.  The sergeant's understanding is that the agreement was expressed to be subject to the complainant's consent.  That consent was not forthcoming.  On 16 July 2004, the applicant, without legal representation, attended court intending to plead guilty to the trespass and damage to property charges and in the expectation that the assault charge would be dropped.  Upon being told that the assault charge would proceed, the applicant informed the learned magistrate that he was unprepared to defend it and did not have legal representation because Sergeant Groves had told him the charge would be dropped.  The learned magistrate responded to the effect that the hearing would proceed later that morning, which it did.

1. As to what transpired before the learned magistrate prior to the hearing of the assault charge on 16 July 2004, I rely upon the evidence of the applicant.  The court's tape recording of that period of the day's proceedings has been erased.  The applicant's evidence that he did not have legal representation because he understood that the assault charge would be dropped finds support in the transcript of what he said to the learned magistrate in the course of an exchange following his conviction on 16 July 2004 and in evidence from the sergeant that he and the applicant had a discussion to the effect asserted by the applicant, albeit that the sergeant's recall is that the agreement to drop the charge was expressed to be subject to the complainant's consent.  The respondent does not dispute the applicant's evidence that he understood that the assault charge would be dropped or otherwise challenge the substance of the applicant's evidence in relation to these matters.

1. An error which amounts to a denial of natural justice in the conduct of proceedings may be sufficient to invoke the Court's jurisdiction pursuant to the Justices Act 1959, ss107(4)(a) and 110(2) to quash or otherwise deal with a conviction, Schreuder v Australian Securities Commission (1996) 6 Tas R 223, Underwood J (as he then was) at 232 – 233. Was the applicant denied natural justice? It is beyond question that the learned magistrate was subject to a common law duty to act fairly, in the sense of according procedural fairness, in the conduct of the hearing of the assault charge against the applicant, that is, to afford him natural justice. The expression "procedural fairness" conveys the notion of a flexible obligation to adopt fair procedures which are appropriate and adapted to the circumstances of the particular case, Kioa v West (1985) 159 CLR 550, Mason J at 584 – 585. To my mind, the circumstances of the applicant's case required that the learned magistrate afford the applicant an opportunity to obtain legal representation and prepare for the hearing of the assault charge. The applicant was unprepared and unrepresented because he understood the charge would not proceed. The charge was serious and raised issues as to which legal representation was highly desirable. It involved a "word against word" contest on which the cross-examination of the complainant and the applicant's election in relation to whether or not to give evidence could be crucial. As it happened, in the absence of legal advice, the applicant elected not to give evidence, an election that made his conviction virtually inevitable. The need for an adjournment was not the result of the applicant's misconduct or his failure to attend to the matter. In these circumstances, in my view, the learned magistrate erred in proceeding with a defended hearing of the assault charge without affording the applicant an opportunity to obtain legal representation and prepare for the hearing. The respondent does not submit otherwise.

1. The notice of review is allowed and the applicant's conviction for assault is quashed.  As a global sentence was imposed on the applicant in relation to his conviction for assault and his convictions on the three charges to which he pleaded guilty, the sentence in relation to those charges must also be quashed.  I remit the hearing of the charge of assault and the sentencing of the applicant on the three charges to which he pleaded guilty for rehearing before a magistrate other than the learned magistrate who initially dealt with these matters.