Hefny v Barnes

[2024] TASSC 9

[2024] TASSC 9

COURT:	SUPREME COURT OF TASMANIA
CITATION:	Hefny v Barnes [2024] TASSC 9
PARTIES:	HEFNY, Mohamed
v
BARNES, Alisha
FILE NO:	154/2022
DELIVERED ON:	27 February 2024
DELIVERED AT:	Hobart
HEARING DATE:	12 April 2022
JUDGMENT OF:	Martin AJ
CATCHWORDS:

Criminal law – Appeal and new trial – Procedure – Notices of appeal – Time for appeal and extension thereof – Prior dismissal of notice of review by single judge and upheld by Full Court – Applicant filed subsequent notice of review seeking a hearing de novo – Applicant sought extension of time on subsequent notice – Hearing de novo not in the interests of justice – Application for extension of time dismissed.

Justices Act 1959, ss 107, 111.
Hefny v Barnes [2021] TASSC 4; Hefny v Barnes [2021] TASFC 14, considered.

Aust Dig Criminal Law [3555]

REPRESENTATION:

Counsel:

Applicant:	In person
Respondent:	V Dawkins

Solicitors:

Respondent:  Director of Public Prosecutions

Judgment Number:	[2024] TASSC 9
Number of paragraphs:	21

Serial No 9/2024 File No 154/2022

MOHAMED HEFNY v ALISHA BARNES

REASONS FOR JUDGMENT	MARTIN AJ 27 February 2024
Introduction

1             In 2019, after a trial, the applicant was convicted by Magistrate R Marron of Common Assault and Resisting a Police Officer. A Notice to Review of that decision was dismissed by Blow CJ and an appeal from Blow CJ was dismissed by the Full Court in November 2021.

2             On 24 January 2022 the applicant filed a second Notice to Review, accompanied by an Interlocutory Application for an order that the matter be re-heard de novo. In addition, as was necessary, the applicant sought an extension of time within which to file the Notice to Review.

3            Written submissions were filed and Geason J heard oral submissions on 12 April 2022. On that day his Honour reserved his decision.

4             It has become apparent that Geason J will not be in a position to deal with this matter in the foreseeable future. In these circumstances, the parties indicated to the Court that they wished the matter to be allocated to another judge. I held a directions hearing on Thursday, 22 February 2024 and the parties confirmed their request that another judge be allocated to determine the matter on the papers.

5   For the reasons that follow, the application for an extension of time is dismissed.

Background

6             The applicant was charged on complaint dated 12 April 2018 with Common Assault and Resist a Police Officer. The charges arose out of an incident on 24 March 2018. After a trial before Magistrate Marron which occupied 4 days between October 2018 and July 2019, on 16 October 2019 his Honour delivered reasons finding the accused guilty of both offences. On 7 November 2019 the applicant filed a Notice to Review which contained, in substance, an application for an extension of time for the filing of the Notice to Review. An extension was subsequently granted.

7   The Notice contained 6 grounds:

"1	The learned Magistrate erred in law in not affording the applicant an opportunity to give his own evidence in chief.
2	And/or in the alternative to ground 1 above, the applicant was not given procedural fairness as he was not given an opportunity to give his own evidence in chief,
3	The learned Magistrate erred in law in not affording the applicant the opportunity lead evidence in chief from his witness
4	And/or in the alternative to ground 3 above, the applicant was not given tl1e procedural fairness as he was not given the opportunity to lead evidence in chief from his witness.
5	The learned Magistrate erred in law in allowing the prosecutor to translate evidence of a prosecution witness whereby the prosecution had the opportunity to employ the service of a qualified translator and elected not to do so.

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6            A reasonable, impartial observer, would have apprehended bias on the part of the learned Magistrate with particulars to be supplied."

8             On 20 October 2020 Blow CJ delivered reasons for dismissing the Notice to Review[1]. His Honour emphasised that the grounds of review upon which the applicant relied required his Honour to consider only issues relating to the fairness of the hearing, and he was not required to consider whether the applicant was guilty or innocent. His Honour also observed that to a large extent, the applicant's submissions did not relate to procedural fairness or apprehended bias, "but to asserted weaknesses in the prosecution case and the proposition that [the applicant] was innocent". The reasons of Blow CJ continued at [2]:

"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."

[1] Hefny v Barnes [2021] TASSC 4

9            The applicant appealed against the decision of Blow CJ dismissing the Notice to Review. The appeal was dismissed on 11 November 2021[2].

[2] Hefny v Barnes [2021] TASFC 14

10   The sole ground upon which the applicant appealed against the decision of Blow CJ was as

follows:

"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."

11           In his reasons, Estcourt J noted that the written submissions of the applicant essentially advanced the proposition that all of the elements of the charges had not been made out beyond reasonable doubt, and that when he was before Blow CJ the applicant was unrepresented "and did not ask his Honour to review the issue of 'guilt or innocence', when he should have done."

12           The applicant's appeal did not involve a point of law or the admission or rejection of evidence. No point of law arising from the decision of Blow CJ was identified. Blow CJ was not asked to review whether the evidence was sufficient to justify a conviction. In these circumstances the Court unanimously dismissed the appeal.

13           The Full Court having dismissed the appeal on 11 November 2021, and having delivered reasons on 24 November 2021, it was not until 24 January 2022 that the applicant filed a second Notice to Review the decision of Magistrate Marron. The Notice is in the following terms:

"WHEREBY THE LEARNED MAGISTRATE ORDERED THAT:

1 The Magistrate found the Charges of Common Assault and Resist Arrest proven But not in relation to all of the elements beyond all reasonable Doubt as required by Section 141 of the. Evidence Act 2001.

THE GROUNDS OF REVIEW ARE AS FOLLOWS:

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1 The Magistrate Erred in Law by not finding all of the elements of the Alleged offence' s proven Beyond all reasonable Doubt as required by S 141 of the Evidence Act 2001 and he states it in his reasons for his decision.

2            When I Appealed this matter and the matter was before Chief Justice Blow on 20.10.2020, I was unrepresented and did not ask the Chief Justice to review the Guilt or Innocence issues in this matter and I should have, which confined the matter to the issues of procedural fairness and apprehended bias."

14          Accompanying the Notice to Review filed on 24 January 2022 was an interlocutory application seeking the following orders:

"1	Pursuant to s 111 of the Justices Act 1959 the interests of Justice requires that the matter be heard and determined in the Supreme Court.
2	That the matter is reheard De Novo.
3	The Court extend time to 24/1/2022 for filing the Notice to Review."

15          In support of the applications, the applicant filed an affidavit dated 24 January 2022. In summary, the affidavit contained the following contentions:

• The Magistrate erred in law in failing to find all of the elements of the charges proven beyond reasonable doubt.

• In the application before Blow CJ, the applicant was unrepresented and did not request the Chief Justice to review the issues of guilt or innocence which "I should have".

• In the hearing before the Full Court, Justice Estcourt "aluded to the fact that there may be other ways to approach the matter" and "that is why I seek an extension of time and that the matter be reheard de novo."

16 Section 107 of the Justices Act 1959 (the Act) provides for an application to the Supreme Court to review an order of a magistrate, and such application must be made within 21 days of the making of the order. Section 107(4) provides that the grounds in a notice "shall allege" either an error or mistake in respect of matters of fact and/or law, or that the magistrate did not have jurisdiction to make the order.

17           In addition to filing a Notice to Review, a person aggrieved by an order in the Magistrates Court may apply to the Supreme Court for an order that the complaint be re-heard de novo and determined in the Supreme Court. Section 111(1) provides that a person who has filed a Notice to Review may apply for a hearing de novo. Hence the applicant's application for a hearing de novo is accompanied by the Notice to Review dated 24 January 2022 and includes an application to extend the time for the filing of the Notice to Review (which was filed a little over 2 years after the original 21 day period expired).

18 Section 111 of the Act provides that an order for a rehearing de novo shall not be made "unless the Court is satisfied that, having regard to all the circumstances, the interests of justice require that the complaint be reheard de novo". A very broad discretion is conferred upon the Court.

19           The applicant was unrepresented before the magistrate. Although there were difficulties to which both the magistrate and Blow CJ adverted, there was no relevant unfairness in the trial. The magistrate gave careful consideration to the difficulties attending language issues and the fact that the applicant was unrepresented, but ultimately all of the evidence was adequately presented and the magistrate made findings of credit which were open to him. Contrary to the contention of the

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applicant, the magistrate found the relevant facts proved beyond reasonable doubt, although his
Honour found that one particular of the charge of Resist Police was not proven.

20           Notwithstanding that the appellant was unrepresented, a clear and cogent case would be required to justify allowing such a lengthy extension of time. Such a case has not been made out. To the contrary, the magistrate considered all relevant evidence and made findings that were open to him as to credit and essential facts. I am unable to discern any basis upon which the Court could be satisfied that the interests of justice require that the complaint be re-heard de novo.

21          For these reasons, the application for an extension of time is dismissed. The application for a hearing de novo is also dismissed both in the absence of a Notice to Review and on the merits.