Hughes v Innes - [2002] TASSC 110

[2002] TASSC 110

CITATION: Hughes v Innes [2002] TASSC 110

PARTIES:  HUGHES, Alan Lindsay
  v
  INNES, David John

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  APPELLATE
FILE NO/S:  LCA 81/2002
DELIVERED ON:  6 December 2002
DELIVERED AT:  Hobart
HEARING DATE:  18 November 2002
JUDGMENT OF:  Cox CJ

CATCHWORDS:

Magistrates - Appeals from and control over Magistrates - Tasmania - Motion to review - The hearing - Generally - Applicant not permitted to cross examine on certain lines - Whether finding was unsafe and unsatisfactory.

M v R (1994) 181 CLR 487, applied.
Justices Act1959 (Tas), s110(2).
Aust Dig Magistrates [272]

REPRESENTATION:

Counsel:
             Applicant:  In person
             Respondent:  K Brown
Solicitors:
             Applicant:  In person
             Respondent:  Director of Public Prosecutions

Judgment Number: [2002] TASSC 110
Number of paragraphs: 20

Serial No 110/2002
File No LCA 81/2002

ALAN LINDSAY HUGHES v DAVID JOHN INNES

REASONS FOR JUDGMENT COX CJ

6 December 2002

The applicant seeks a review of his conviction for one count of common assault and one count of using abusive language to a police officer in the execution of his duty contrary to the Police Offences Act 1935, ss35(1) and 34B(1)(b) respectively. Both offences occurred on the same day, namely 10 January 2002, but hours and miles apart.

In respect of the offence of assault, the prosecutor called a witness, Ms Tuttle, who was an employee of a firm of estate agents which acted for the applicant's landlord. Ms Tuttle had known him for some two years as a tenant. On 10 January 2002, at about 11am, she came to the rented premises he was occupying in Margaret Street, Sandy Bay with the intention of serving upon him a Notice to Vacate the premises. She gave evidence that she knocked on the door, which was opened by the applicant holding an unsheathed hatchet in his right hand. She threw the notice at him and retreated towards her car as he advanced towards her. She claimed he yelled at her, "I'm going to get you", holding the hatchet above his head and waving it about in a threatening manner. He also said, "I'm coming into the office at 2 o'clock and I'm going to chop you up". She moved quickly towards her car about 100 metres away from the premises, jumped in and drove straight off. He was still in the street holding the hatchet. She said she believed he was going to hit her with it before she got to the car and that when she reached the car, she believed he was going to attack the car with it. She returned to her office and notified the police.

Although there is a glass panel beside the front door of the rented premises, the witness claimed to have first seen the hatchet in the applicant's hand after he opened the door and to have last seen it when he was in the street as she drove off. The police found a hatchet immediately inside the front door in a…

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 Hughes v Innes

Details

AGLC: Hughes v Innes [2002] TASSC 110
Case: [2002] TASSC 110
Decision Date: 6 December 2002

CaseChat Overview and Summary

In the Supreme Court of Tasmania, the case of Hughes v Innes was heard and determined by Cox CJ on 6 December 2002. Alan Lindsay Hughes appealed against his conviction for common assault and using abusive language to a police officer, which arose from two separate incidents on the same day. The first incident involved Hughes allegedly holding an unsheathed hatchet in a threatening manner towards Ms Tuttle, an employee of the firm managing his rental property. The second incident involved Hughes allegedly using abusive language towards police officers who had arrested him earlier that day. The primary legal issue before the court was whether the verdict of the magistrate was unsafe and unsatisfactory.

The court found that the magistrate had objectively considered the relationship between Hughes and Ms Tuttle, and had sufficient evidence to assess the plausibility of Hughes' suggestion that the assault allegation was fabricated. The court also found that the magistrate's decision on each complaint was made on the evidence admissible on each and was not tainted by the evidence on the other. The court held that the magistrate was entitled to pay full regard to the consideration that the jury or fact-finding tribunal is the body entrusted with the primary responsibility of determining guilt or innocence, and had the benefit of having seen and heard the witnesses.

Having made an independent assessment of the material before the learned magistrate, the court was quite satisfied that it was open to the magistrate to be persuaded of the applicant's guilt beyond reasonable doubt. The appeal was dismissed, and the convictions were upheld.

Orders