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…

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 [2024] TASSC 9
Case: [2024] TASSC 9
Decision Date: 27 February 2024

CaseChat Overview and Summary

The case of Hefny v Barnes involved the applicant, who was convicted of serious criminal offences, appealing against the decision of the Full Court of the Supreme Court of South Australia. The applicant had previously filed a notice of review which was dismissed by a single judge and subsequently by the Full Court. Following this, the applicant filed another notice of review seeking a hearing de novo. The crux of the matter was whether the applicant could be granted an extension of time to appeal and the merits of a hearing de novo.

The central legal issues that the court had to address were whether the applicant's second notice of review could be considered for a hearing de novo and whether an extension of time for appeal should be granted. The court needed to determine if the interests of justice warranted a new hearing and if the applicant's delay in filing the second notice of review was justified. The applicant argued that a hearing de novo was necessary to rectify errors in the original proceedings.

The court found that a hearing de novo was not in the interests of justice, as the applicant's delay in filing the second notice of review was inexcusable. The court held that the applicant had ample opportunity to challenge the decision in the initial proceedings and that the proposed new evidence would not have altered the outcome. Furthermore, the court dismissed the application for an extension of time, emphasising that the applicant's delay in filing the second notice of review was unreasonable and unjustified. The Full Court upheld the original decision and denied the application for an extension of time, concluding that the interests of justice did not support a new hearing.

Orders