Hefny v Barnes - [2021] TASFC 14

[2021] TASFC 14

COURT:	SUPREME COURT OF TASMANIA (FULL COURT)
CITATION:	Hefny v Barnes [2021] TASFC 14
PARTIES:	HEFNY, Mohammed
v
BARNES, Constable Alisha
FILE NO:	FCA 543/2021
JUDGMENT
APPEALED FROM:	Hefny v Barnes [2021] TASSC 4
DELIVERED ON:	24 November 2021
DELIVERED AT:	Hobart
HEARING DATE:	11 November 2021
JUDGMENT OF:	Estcourt J, Pearce J, Geason J
CATCHWORDS:

Appeal and New Trial – Appeal – General principles – Right of appeal – When appeal lies – Error of law –

What is – Generally – No error asserted.

Justices Act 1959 (Tas), s 123.

Aust Dig Appeal and New Trial [20]

REPRESENTATION:

Counsel:

Appellant: J Walker
Respondent: S Nicholson

Solicitors:

Respondent: Director of Public Prosecutions

Judgment Number:	[2021] TASFC 14
Number of paragraphs:	23

Serial No 14/2021

File No FCA 543/2021

MOHAMMED HEFNY v CONSTABLE ALISHA BARNES

REASONS FOR JUDGMENT

FULL COURT ESTCOURT J

PEARCE J GEASON J

24 November 2021

Orders of the Court:

1 The appeal is dismissed.

Serial No 14/2021

File No FCA 543/2021

MOHAMMED HEFNY v CONSTABLE ALISHA BARNES

REASONS FOR JUDGMENT

FULL COURT

ESTCOURT J

24 November 2021

The appeal

1 This is an appeal against a decision of Blow CJ dismissing a motion by the appellant to review a decision of a magistrate convicting him of two summary offences. See Hefny v Barnes [2021] TASSC 4.
2 The learned primary judge summarised the background to the motion to review before him in the following way at [1] and [2] of his reasons for decision dated 19 February 2021:
"1 This is a motion for the review of a determination by a magistrate, Mr R Marron, by which he found that two charges against the applicant, Mohamed Hefny, were proven. Both charges related to an incident on 24 March 2018. The first alleged that the applicant assaulted a man named Richard Lloyd by grabbing his arms and pushing him, by grabbing his arms again, by punching him twice, and by pushing him again. The second charge alleged that the applicant resisted two police officers in the execution of their duty by struggling with them and refusing to place his arms behind his back to be handcuffed. The applicant has filed a notice to review which contains grounds in which he asserts that the learned magistrate denied him procedural fairness in several respects, and that he was obliged to disqualify himself on the basis of apprehended bias.
2 The applicant did not have a lawyer in the Magistrates Court or for the hearing of this motion to review. To a large extent the submissions that he made to me did not relate to procedural fairness or apprehended bias, but to asserted weaknesses in the prosecution case and the proposition that he was innocent. In the Magistrates Court, witnesses gave evidence to the effect that the applicant committed the offences that he was charged with. It was open to the learned magistrate to believe those witnesses and…

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 Hefny v Barnes

Details

AGLC: Hefny v Barnes [2021] TASFC 14
Case: [2021] TASFC 14
Decision Date: 24 November 2021

CaseChat Overview and Summary

The parties to this matter were the appellant, Mr. Hefny, and the respondent, Mr. Barnes. The dispute concerned an appeal against a decision of the Magistrates Court. The appeal was heard by the Supreme Court of Tasmania.

The primary legal issue before the Supreme Court was whether the Magistrates Court had made an error of law in its previous determination. The appellant asserted that such an error had occurred, forming the basis of his appeal.

The Court considered the nature of appeals from the Magistrates Court and the requirement for an error of law to be demonstrated. After reviewing the submissions and the decision of the Magistrates Court, the Supreme Court found that no error of law had been established. The Court therefore dismissed the appeal.

Orders