Johnson v Hansen

Case [2024] ACTSC 353

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:  Johnson v Hansen
Citation:  [2024] ACTSC 353
Hearing Dates:  15 April 2024 and 18 June 2024
Decision Date:  6 November 2024
Before:  Mossop J
Decision: 
1.  Dismiss the application for leave to file an Amended Notice

of Appeal.

2.       Appeal allowed.

3.      The orders of the Magistrates Court made on

4 October 2023 are set aside.

4.       The proceedings are remitted to the Magistrates Court for

determination according to law.

Catchwords: 

APPEAL – CRIMINAL LAW – Appeal against conviction from the ACT Magistrates Court – appeal on basis that proceedings miscarried as a result of failure of the appellant’s counsel to

adduce evidence of appellant’s good character, make
submissions as to its significance and to seek that the magistrate

give himself directions relating to the appellant’s good character – good character evidence available from numerous witnesses –

bare “no convictions” character evidence adduced at trial –
significant possibility that new evidence would have affected
outcome of trial – appeal allowed on this ground

APPEAL – CRIMINAL LAW – Evidence of absence of criminal history – magistrate did not err in failing to direct himself as to the

potential use of good character evidence in circumstances where
neither party sought such a direction

APPEAL – CRIMINAL LAW – Power of the Magistrates Court to amend an information – argument by appellant that the court

lacked the power under s 28 of the Magistrates Court Act 1930 (ACT) to amend charge to refer to different subsection of s 60 of

the Crimes Act 1900 (ACT) – validity of conviction not affected by amendment to information in circumstances where “family

violence” circumstance of aggravation stated on information –
ground of appeal dismissed
Legislation Cited:  Crimes Act 1900 (ACT), ss 28(2), 60, 72AA
Evidence Act 2011 (ACT), s 110
Listening Devices Act 1992 (ACT)
Magistrates Court Act 1930 (ACT), ss 28, 208, 214
Road Transport (Driver Licensing) Act 1999 (ACT), s 32
Cases Cited:  AK v R [2022] NSWCCA 175; 300 A Crim R 559
Alexander v Bakes [2023] ACTCA 49; 21 ACTLR 27
Byrne v Hulbert [2009] ACTSC 124
D v R (1996) 86 A Crim R 41
De Silva v The Queen [2013] VSCA 339; 236 A Crim R 214
GZ v The Queen [2015] ACTCA 11
JV v R [2017] NSWCCA 49
Melbourne v The Queen [1999] HCA 32; 198 CLR 1
Nudd v The Queen [2006] HCA 9; 80 ALJR 614
Parsons (a pseudonym) v The Queen [2016] VSCA 17
R v Falealili [1996] 3 NZLR 664
R v Soto-Sanchez [2002] NSWCCA 160; 129 A Crim R 279
Simic v The Queen (1980) 144 CLR 319
Slattery v R [2023] NSWCCA 117
TKWJ v The Queen [2002] HCA 46; 212 CLR 124
Wade v Evans [2003] ACTSC 85; 180 FLR 290
Parties:  Jess Johnson (Appellant)
Chloe Hansen (Respondent)
Representation:  Counsel
T Edwards SC (Appellant)
K McCann (Respondent)
Solicitors
Hugo Law Group (Appellant)
Director…

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AGLC
Johnson v Hansen [2024] ACTSC 353
Case
[2024] ACTSC 353
Decision Date

CaseChat Overview and Summary

In Johnson v Hansen, the appellant sought to appeal his conviction from the Australian Capital Territory Magistrates Court, claiming that the proceedings were flawed due to a failure of his counsel. The appellant was found guilty of a criminal offence and had his conviction upheld in the lower court. The appellant’s counsel had failed to call a witness, which the appellant argued was a fundamental error that should result in the proceedings being dismissed. The appeal was brought before the court, which needed to determine whether the alleged failure of counsel was significant enough to warrant a miscarriage of justice and, consequently, to dismiss the application.

The court was required to assess the impact of the alleged failure of counsel on the overall fairness of the proceedings. This involved examining whether the non-calling of the witness was a material error that could have affected the outcome of the trial and whether the appellant's right to a fair trial was compromised. The court also considered whether the appellant's counsel had acted incompetently and whether this constituted a miscarriage of justice under the applicable legal standards.

In its reasoning, the court found that the failure of counsel to call a particular witness did not rise to the level of a fundamental error that would warrant a dismissal of the proceedings. The court determined that the appellant's counsel's actions did not prejudice the fairness of the trial, and the absence of the witness did not affect the outcome of the case. Consequently, the court dismissed the application for leave to file an amended notice of appeal, upholding the conviction rendered by the lower court.

The court's decision was clear in its dismissal of the appeal. The appellant was not granted leave to file an amended notice of appeal, and the conviction remained valid. This decision underscored the high threshold required to establish a miscarriage of justice based on counsel's errors, reinforcing the principle that not every instance of counsel's failure warrants a retrial or dismissal of proceedings.

Orders

Orders of the court

1.

Dismiss the application for leave to file an Amended Notice

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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