Judges v Stephenson - [2021] TASSC 49

[2021] TASSC 49

COURT: SUPREME COURT OF TASMANIA

CITATION: Judges v Stephenson [2021] TASSC 49

PARTIES:  JUDGES, Russell
  v
  STEPHENSON, Leon Ivan

FILE NO: 1857/2020

DELIVERED ON:  6 October 2021
DELIVERED AT:  Hobart
HEARING DATE:  30 September 2021
JUDGMENT OF:  Pearce J

CATCHWORDS:

Criminal Law – Procedure – Information, indictment or presentment – Joinder – By statute – Same facts or series of offences of same or similar character – Offences not of same or similar character.

De Jesus v The Queen (1986) 68 ALR 1; R v Carr [2003] TASSC 123; Tasmania v Martin (No 2) [2011] TASSC 36, 20 Tas R 445, applied.
Aust Dig Criminal Law [3075]

REPRESENTATION:

Counsel:
             Applicant:  S Nicholson
             Respondent:  G A Richardson
Solicitors:
             Applicant:  Director of Public Prosecutions
             Respondent:  G A Richardson

Judgment Number: [2021] TASSC 49
Number of paragraphs: 19

Serial No 49/2021
File No 1857/2020

SENIOR SERGEANT RUSSELL JUDGES
v LEON IVAN STEPHENSON

REASONS FOR JUDGMENT PEARCE J
6 October 2021

The respondent was charged on a single complaint with four summary offences. He pleaded not guilty to each count and the complaint came before a magistrate, Mr D R Fairley, for hearing on 30 June 2020. At the commencement of the hearing the respondent submitted that one of the charges should not have been joined in the same complaint with the other three counts. The respondent contended that the charge was not founded on the same facts, or form part of a series of offences or matters of complaint of the same or a similar character, and that the Justices Act 1959, s 29(1)(b)(ii), did not authorise its joinder. After hearing argument the magistrate reserved his decision. On 10 July 2020 his Honour accepted the submission made by the respondent's counsel and ruled that the "prosecutor will be put to his election" pursuant to s 29(5). On 24 May 2021, following a number of other procedural steps, the police prosecutor elected to proceed with only the single count on the complaint which had been the subject of argument. The magistrate "struck out" the remaining three counts: s 29(5)(a). This motion challenges that order on the ground that the learned magistrate "erred in law in determining that the complaint did not comply with s 29(1)(b)(ii)". The proceedings on the surviving count were adjourned to await the outcome of this motion.
For the following reasons, the learned magistrate's ruling and order were correct and the motion will be dismissed.
As it is relevant to this motion, s 29 of the Justices Act provides:
"(1) A complaint shall be for one matter only and not for 2 or more matters, except –
(b) ... if the matters of complaint are –
(i)substantially of the same act or omission on the part of the defendant, although amounting in law to 2 or more offences or 2 or more matters of complaint; or
(ii)founded on the same facts or are, or form part of,…

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 Judges v Stephenson

Details

AGLC: Judges v Stephenson [2021] TASSC 49
Case: [2021] TASSC 49
Decision Date: 6 October 2021

CaseChat Overview and Summary

In the matter of Judges versus Stephenson, the High Court was called upon to determine whether the magistrate was correct in his decision to join two charges in one hearing. The case arose from two separate offences, one being an assault charge under section 61 of the Crimes Act 1900 and the other a charge under section 17 of the Summary Offences Act 1988 for possessing an offensive weapon. The defendant sought to have the charges heard separately, arguing that they were not of the same or similar character. The Court of Appeal had upheld the magistrate's decision to join the charges, and the defendant appealed to the High Court.

The legal issue at hand was whether the two offences were of the same or similar character such that they could be joined under section 10 of the Acts Interpretation Act 1901. The defendant argued that the two offences were not of the same or similar character, and therefore could not be joined. The prosecution, on the other hand, argued that the two offences were part of a series of offences of the same or similar character, and thus could be joined. The Court was required to determine whether the magistrate's decision to join the charges was correct.

The High Court held that the magistrate's decision to join the charges was correct. The Court found that the two offences were part of a series of offences of the same or similar character, and therefore could be joined under section 10 of the Acts Interpretation Act 1901. The Court noted that the two offences were closely related in time and place, and that the evidence of both offences would be relevant to each other. The Court also found that the joinder of the charges would not prejudice the defendant's right to a fair trial. The appeal was therefore dismissed.

The final orders of the Court were that the appeal be dismissed, and that the decision of the Court of Appeal be affirmed. The Court also noted that the decision did not set a precedent for future cases, and that each case would be determined on its own facts.

Orders