J v Hamilton - [2007] TASSC 105

[2007] TASSC 105

CITATION: J v Hamilton [2007] TASSC 105

PARTIES:  J, S A
  v
  HAMILTON, Sergeant Garry

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  APPELLATE
FILE NO/S:  413/2007
DELIVERED ON:  13 December 2007
DELIVERED AT:  Hobart
HEARING DATE:  11 December 2007
JUDGMENT OF:  Evans J

CATCHWORDS:

Magistrates – Appeal from and control over magistrates – Tasmania – Motion to review – The hearing – Generally – Error by magistrate must be established.

Justices Act1959 (Tas), s107(4)(a).
Aust Dig Magistrates [272]

REPRESENTATION:

Counsel:
             Applicant:  K Edwards
             Respondent:  S J Bender
Solicitors:
             Applicant:  Legal Aid Commission of Tasmania
             Respondent:  Director of Public Prosecutions

Judgment Number: [2007] TASSC 105
Number of paragraphs: 17

Serial No 105/2007
File No 413/2007

SAJ v SERGEANT GARRY HAMILTON

REASONS FOR JUDGMENT EVANS J

13 December 2007

Following a defended hearing, the applicant was convicted by a magistrate on a charge of motor vehicle stealing in breach of the Police Offences Act 1935, s37B(1). The particulars of the charge are that between 3 June 2006 and 4 June 2006 at Devonport in Tasmania, the applicant used a Mazda 323 hatchback motor vehicle registered number BP-1549, the property of Marlene Mary Xuereb without her consent, or the consent of some person in lawful charge of the vehicle and having authority to give that consent.

The applicant has filed a notice to review his conviction. As the notice was argued before me, the applicant contends that the learned magistrate erred:

·by allowing a record of a police interview with a witness, M N, to be admitted into evidence;
·by allowing the prosecutor to cross-examine Ms N in relation to that record of interview;
·by giving too much weight to Ms N's evidence; and
·by refusing to direct himself in relation to Ms N's evidence in accordance with a co-accused's direction.

At the outset of the hearing before the learned magistrate, the following evidence was admitted with the consent of the applicant's counsel:

·Four photographs of the stolen vehicle and its contents that were taken where the vehicle was located outside 60 Thomas Street, East Devonport. They included a photograph of a pair of scissors on the driver's seat in the vehicle.
·A statutory declaration made by Constable Fiona Smith as to the above photographs and as to taking possession of the pair of scissors.
·A DNA profile report from Paul Holloway, a forensic scientist, to the effect that: a DNA profile was obtained from a swab taken from the scissors found in the front seat of the motor vehicle; the profile was a mixture from at least two people; the major DNA profile matched the DNA profile of the applicant; and the chance of a second person unrelated to the applicant having the same DNA profile was less than 1 in 100 million.
·A video record of a police interview with the applicant conducted at midday on 4 June 2006.

During the course of the hearing, counsel informed the learned magistrate that it was an agreed fact…

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 J v Hamilton

Details

AGLC: J v Hamilton [2007] TASSC 105
Case: [2007] TASSC 105
Decision Date: 13 December 2007

CaseChat Overview and Summary

In the matter of J v Hamilton, the dispute arose from an appeal against a decision made by a magistrate in Tasmania. The appellant, J, sought a review of the magistrate's decision, which was related to an unspecified matter. The appeal was heard in the Magistrates Court of Tasmania, where the appellant contested the magistrate's ruling, claiming that it contained errors that warranted a review.

The legal issues before the court involved the scope and criteria for a review of a magistrate's decision. The court was required to determine whether the alleged errors made by the magistrate were indeed significant enough to warrant a review. The appellant argued that the magistrate had erred in their decision, and this error warranted the court's intervention. The court had to consider the extent to which a magistrate's error can be grounds for a review and what the standard for establishing such an error is.

The court carefully considered the arguments presented by both parties and examined the magistrate's decision in question. It was determined that the appellant had not sufficiently established that an error had been made by the magistrate, and as such, a review was not warranted. The court emphasised that an error by the magistrate must be clearly established before a review can be granted. Consequently, the appeal was dismissed, and the original magistrate's decision was upheld. The court's ruling highlighted the importance of demonstrating a clear error by the magistrate when seeking a review of their decision.

Orders