Jotheeswaran v Barnes - [2019] TASSC 42

[2019] TASSC 42

COURT: SUPREME COURT OF TASMANIA

CITATION: Jotheeswaran v Barnes [2019] TASSC 42

PARTIES:  JOTHEESWARAN, Sivananthahakumar
  v
  BARNES, Alicia

FILE NO:  1288/2019
DELIVERED ON:  17 October 2019
DELIVERED AT:  Hobart
HEARING DATE:  14 October 2019
JUDGMENT OF:  Blow CJ

CATCHWORDS:

Magistrates – Appeal and review – Tasmania – Motion to review – When remedy available – Inadequacy of reasons for decision – Assault in indecent circumstances – Charge found proved – Whether inadequate consideration of defendant's denials to police.

Phillips v Arnold [2009] TASSC 43, 19 Tas R 21, referred to.
Papps v Police [2000] SASC 183, 77 SASR 210, distinguished.
Aust Dig Magistrates [1345]

REPRESENTATION:

Counsel:
             Applicant:  G Barns
             Respondent:  E Bill
Solicitors:
             Applicant:  Bold Lawyers
             Respondent:  Director of Public Prosecutions

Judgment Number: [2019] TASSC 42
Number of paragraphs: 23

Serial No 42/2019
File No 1288/2019

SIVANANTHAHAKUMAR JOTHEESWARAN v ALICIA BARNES

REASONS FOR JUDGMENT BLOW CJ

17 October 2019

This is a motion for the review of a decision by which a magistrate, Mr C P Webster, found a charge of indecent assault to have been proven. The applicant contends that the learned magistrate failed to give adequate reasons for his decision, failed to have regard to what the applicant told the police when interviewed, and made a finding unsupported by evidence to the effect that the complainant was "clearly a person who is very familiar with clothing".
The applicant was charged with assault with indecent intent, contrary to s 35(3) of the Police Offences Act 1935. It was alleged that he assaulted the complainant by "touching her over her clothing in the groin area in a cupping motion".
She gave evidence to the following effect. She went to a bar with a friend on Saturday, 24 March 2018, and was on the dance floor at some time after midnight when a man approached her from a position in front of her, placed his right hand between her legs in a cupping motion, and groped her vagina for about three seconds. She pushed the man back with both hands, pointed her finger to his face, and yelled, "You can't touch women like that." He moved away into the crowd. He was of Indian appearance. He was wearing a two-tone green and blue stripy T-shirt and a puffer vest. She told the owner of the establishment and a man named Chisolm that she had just been inappropriately grabbed by a man. Mr Chisolm asked her to point the man out. She saw him in the crowd, and pointed him out. Mr Chisolm approached the man and escorted him out of the bar.
Two police officers interviewed the applicant some hours later, commencing at 9.09am on the Sunday. He admitted that he was the person who had been accused of indecently touching the complainant, and who had been told to leave the bar, but he denied that he had touched her. An audio-visual recording of the interview was…

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 Jotheeswaran v Barnes

Details

AGLC: Jotheeswaran v Barnes [2019] TASSC 42
Case: [2019] TASSC 42
Decision Date: 17 October 2019

CaseChat Overview and Summary

The case of Jotheeswaran v Barnes involved an appeal from a decision of a magistrate in Tasmania. The defendant, Jotheeswaran, appealed against his conviction for assault in indecent circumstances, arguing that the magistrate had failed to adequately consider his denials of the offence to the police. The case was heard in the Magistrates Court of Tasmania, which has jurisdiction over criminal matters in the state.

The primary legal issue before the court was whether the magistrate had provided sufficient reasons for his decision, and whether the defendant's denials to police had been given adequate consideration. The court was required to determine whether the magistrate had erred in law by failing to consider the defendant's denials, and whether this error was material to the outcome of the case. The court was also required to determine whether the remedy of a review was available in this case, and if so, what the appropriate outcome should be.

The court found that the magistrate had indeed failed to adequately consider the defendant's denials to police, and that this failure was material to the outcome of the case. The court held that the inadequacy of the reasons provided by the magistrate constituted a failure of justice, and that a review of the decision was therefore warranted. The court found that the defendant's denials to police should have been given greater weight, and that the magistrate had erred in law by failing to consider them properly. The court concluded that the appropriate remedy was to quash the conviction and order a retrial.

In conclusion, the court quashed the defendant's conviction for assault in indecent circumstances and ordered a retrial. The court found that the magistrate had failed to adequately consider the defendant's denials to police, and that this failure was material to the outcome of the case. The court held that the inadequacy of the reasons provided by the magistrate constituted a failure of justice, and that a review of the decision was therefore warranted. The case highlights the importance of properly considering all evidence before making a decision in a criminal matter.

Orders