Hefny v Barnes
[2021] TASFC 14
•24 November 2021
[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 find the charges proven. The grounds listed in the notice to review do not contain any assertion that the prosecution evidence was too weak or too unreliable for the learned magistrate to find the charges proven. My role therefore is to determine whether the learned magistrate denied the applicant procedural fairness, or whether he erred by proceeding when he should have disqualified himself on the basis of apprehended bias."
3 For the reasons he gave, the learned primary judge held that the motion to review had to be dismissed. His Honour emphasised that the grounds of review relied upon by the appellant required him only to consider issues relating to the fairness of the hearing. His Honour was not required to consider whether he was guilty or not guilty.
4 The appellant filed an appeal to this Court on 11 March 2021, alleging the following:
"The elements of the assault and resisting arrest charges were not proved beyond a reasonable doubt and the honourable Justice Blow was not requested to review the guilt or innocence of the appellant."
The appellant's submissions
5 The appellant has filed written submissions in support of his notice of appeal essentially saying that all of the elements of the charges against him have not been made out beyond reasonable doubt and that when he was before the learned primary judge he was unrepresented and did not ask his Honour to review the issue of "guilt or innocence", when he should have done. He now asks this Court to do so.
2 No 14/2021
6 The appellant was represented by counsel, Mr Walker, before the Court. Mr Walker argued that having alluded to the question of guilt or innocence at [2] of his reasons, his Honour erred in failing to decide the question. Mr Walker submitted that the Court could now review the magistrate's decision in the exercise of its inherent jurisdiction.
The respondent's submissions
7 The respondent submits that the notice of appeal does not contain a valid ground of appeal within the meaning of s 123 of the Justices Act 1959 and that the appeal should be dismissed.
8 The respondent submits that the question before the learned primary judge was whether the learned magistrate had afforded procedural fairness and natural justice to the appellant and further, whether the learned magistrate ought to have disqualified himself because of apprehended bias.
9 The respondent submits that given that the appeal to this Court is brought pursuant to s 123 of the Justices Act, the grounds of appeal must be related to "a point of law or the admission or rejection of evidence": Caccavo v Collins [2014] TASFC 7, 23 Tas R 384, per Pearce J at [11] citing Brown v Bryan and Shepherd; Burles v Bryan [1963] Tas SR 1, and that no error of law has been asserted as to the learned primary judge's approach to reviewing the relevant authorities and applying them to the case as put by the appellant about the two issues of procedural fairness and apprehended bias.
10 The respondent concludes that, accordingly, there is nothing for this Court to consider.
| Conclusion |
11 The respondent's submission is undoubtedly correct. The Court has no inherent jurisdiction to now review matters not raised in the notice to review.
12 Had the appellant wished to agitate matters beyond the scope of the notice to review it would have been necessary to amend the notice.
13 There is no course this Court can adopt to now enable that to occur or to grant any relief to the
appellant.
Disposition
14 For the foregoing reasons I joined in the order of the Court dismissing the appeal following the hearing on 11 November 2021.
3 No 14/2021
File No FCA 543/2021
MOHAMED HEFNY v CONSTABLE ALISHA BARNES
| REASONS FOR JUDGMENT | FULL COURT PEARCE J 24 November 2021 |
15 This appeal concerns the decision of Blow CJ to dismiss a motion to review brought by the appellant challenging the decision of a magistrate: Hefny v Barnes [2021] TASSC 4. At the conclusion of oral argument I joined in an order dismissing the appeal. These are my reasons for doing so.
16 In April 2018 the appellant was charged on complaint with assault and resisting police in the execution of their duty. Both offences were alleged to have been committed on 24 March 2018. The appellant pleaded not guilty. The charges were heard and determined by a magistrate, Mr R Marron, who found both charges proved and convicted the appellant. The appellant moved the Supreme Court to review the magistrate's order in accordance with the Justices Act 1959, s 107. Notices of motion under s 107 must be "in accordance with" that section and, according to subs (2), shall set forth in specific terms the ground on which review is sought. Section 107(4)(a) requires there to be shown an error or mistake on the part of the magistrate on a matter or question of fact alone, or of law alone, or of both fact and law. By s 108, an applicant "shall be held to the ground set forth in his notice to review" unless the court allows an amendment.
17 The appellant's motion to review was heard by Blow CJ. There were six grounds of the motion his Honour was asked to consider. All concerned procedural fairness. One ground concerned the failure to engage a translator for a prosecution witness. Two grounds concerned the issue of whether the magistrate permitted, or did not permit, the appellant to give his own evidence in the manner he chose. Two grounds asserted that the appellant was not permitted to lead evidence from a witness, his wife. The final ground alleged apprehended bias. There was no ground of the motion which asked the primary judge to review the magistrate's decision on the evidence. Had such a ground been advanced by the appellant, then the question for the primary judge would have been whether it was open to the learned magistrate, as a reasonable person, to come to the conclusion he did: Phillips v Arnold [2009] TASSC 43, 19 Tas R 21 at [46]. Blow CJ, in his reasons for dismissing the appellant's motion, said at [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 find the charges proven. The grounds listed in the notice to review do not contain any assertion that the prosecution evidence was too weak or too unreliable for the learned magistrate to find the charges proven."
18 Blow CJ found that none of the grounds of the motion were made out and continued:
"For these reasons, the motion to review must be dismissed. I emphasise that the grounds of review relied upon by the applicant required me only to consider issues relating to the fairness of the hearing. I was not required to consider whether he was guilty or innocent.
19 The sole ground upon which the appellant now seeks to challenge the order dismissing the
motion to review is:
4 No 14/2021
"The elements of the assault and resisting arrest charge were not proved beyond reasonable doubt and the Honourable Justice Blow was not requested to review the guilt or innocence of the appellant Mohamed Hefny."
20 In his submissions in support of this appeal the appellant asks this Court to consider the evidence before the magistrate and conclude that his Honour should not have found the charges proved. In other words, the appellant now seeks to argue that the magistrate should not have found him guilty although that was not a ground of his motion to the primary judge. At the hearing of the appeal the appellant was represented by counsel. He contended that Blow CJ erred by failing to consider the issue of the appellant's guilt even though, as his Honour pointed out, it was not a ground of the motion to review.
21 The appellant's contention cannot succeed. The primary reason is that, by the Justices Act, s 123(1), appeals to this Court are confined to the situation in which a person who is a party to a motion to review "is dissatisfied with a rule or order of the Supreme Court in point of law or upon the admission or rejection of evidence." The nature of such an appeal is considered in cases including Brown v Bryan and Shepherd; Burles v Bryan [1963] Tas SR 1, Australian Securities and Investments Commission v Hosken [No 2] [2000] TASSC 12 and Caccavo v Collins [2014] TASFC 7, 23 Tas R 384.
22 This appeal does not identify any point of law arising from the decision of Blow CJ or concern the admission or rejection of evidence by his Honour. The appellant's ground of appeal and his submissions expressly recognise that the primary judge was not asked to consider the ground he now seeks to pursue. His written submissions state that "I did not ask his Honour to review the issue of guilt or innocence on the assault or resist arrest charge and I should have." In those circumstances there could be no error in failing to consider whether the evidence before the magistrate was sufficient to justify a conviction when that was something the learned primary judge was not asked to do. To the contrary, in light of the provisions of the Justices Act, ss 107 and 108, Blow CJ correctly recognised that he was not able to determine the motion to review on the basis of a ground not included in the notice to review. Because the power to hear and determine the appeal derives from statute, there is no inherent jurisdiction to intervene as contended by counsel for the appellant.
5 No 14/2021
File No FCA 543/2021
MOHAMMED HEFNY v CONSTABLE ALISHA BARNES
| REASONS FOR JUDGMENT | FULL COURT GEASON J 24 November 2021 |
23 I joined in the order dismissing the appeal for the reasons given by Estcourt J and Pearce J. There is nothing I wish to add.
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