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Kerr v Smith

Kerr v Smith

Case [2017] TASSC 13 9 March 2017

Appeal

Jurisdiction

Adjournment and remand

Procedural Fairness

Civil Litigation & Procedure

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[2017] TASSC 13

COURT: SUPREME COURT OF TASMANIA

CITATION: Kerr v Smith [2017] TASSC 13

PARTIES:  KERR, Philip (Constable)
  v
  SMITH, Jamie Sean

FILE NO:  3000/2016
DELIVERED ON:  9 March 2017
DELIVERED AT:  Hobart
HEARING DATE:  30 January 2017
JUDGMENT OF:  Tennent J

CATCHWORDS:

Magistrates – Appeal and review – Tasmania – Motion to review – Other matters - Adjournment and remand – General principles – Proper exercise of the discretion – Application for adjournment refused – Proceedings dismissed as a consequence.

Hamilton v Littlejohn [2006] TASSC 109, followed.
Aust Dig Magistrates [1349]

REPRESENTATION:

Counsel:
             Applicant:  S Thompson
             Respondent:  R Fisher
Solicitors:
             Applicant:  Director of Public Prosecutions
             Respondent:  Legal Aid Commission of Tasmania

Judgment Number: [2017] TASSC 13
Number of paragraphs: 17

Serial No 13/2017
File No 3000/2016

CONSTABLE PHILIP KERR v JAMIE SEAN SMITH

REASONS FOR JUDGMENT TENNENT J

9 March 2017

The respondent was charged on complaint number 768/16 with one count of breach of family violence order, one count of common assault and one count of injure property. All the charges arose out of an incident involving the respondent and his female partner on 1 February 2016. The offences were all family violence offences within the meaning of the Family Violence Act 2004, s 13. At the time the alleged offending occurred, the alleged victim was pregnant to the respondent, and the respondent was the subject of a police family violence order to protect the alleged victim, which had been in place since 9 November 2015. The allegations involved punching and grabbing the alleged victim by the jaw and banging her head against a wall.
The respondent appeared in an out-of-hours court on the day of the incident, and was granted bail. He next appeared before a magistrate on 10 March 2016, at which time he entered a plea of not guilty to all charges. The matter was adjourned for mention to 2 May 2016, and was then further mentioned on 11 May and 4 July. On the last date, it was adjourned for hearing to 10 October 2016.
The matter came on for hearing on 10 October 2016. The complainant had not been served with a summons, and another witness, who had been served with a notice to appear, failed to do so. The prosecutor sought a warrant for the arrest of the witness who had failed to appear, and sought an adjournment of the hearing, which was opposed. Magistrate Marron refused the adjournment, and dismissed the complaint. He did not deal with the application for a warrant. A review of his orders is now sought.
The proceedings on 10 October were brief. The matter was called on, and then the summonsed witness was called. The following exchange then occurred between the magistrate and counsel:
"WAYNE BRISTOW CALLED – NO APPEARANCE
MS SUNDRAM: In regards to this witness he was personally served on the 11^th July and was told to attend court and he has not…

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 Kerr v Smith

Details

AGLC: Kerr v Smith [2017] TASSC 13
Case: [2017] TASSC 13
Decision Date: 9 March 2017

CaseChat Overview and Summary

The case of Kerr v Smith involved a motion to review the decision of a Magistrates Court in Tasmania. The nature of the dispute was related to the procedural fairness and correctness of the original decision, which had been made in a matter involving the applicants, Kerr, and the respondent, Smith. The matter came before the court as an appeal and review of the original decision, seeking to challenge the process and outcome of the lower court proceedings.

The primary legal issues before the court were whether the Magistrates Court had properly exercised its discretion in the original decision and whether there were grounds for the court to grant a motion to review. The applicants argued that the original decision was flawed due to procedural errors and that they were entitled to a review. The respondents contended that the decision was correctly made and that there was no basis for a review. The court had to determine whether the application for a review was justified and whether the original decision was fair and correct.

In its reasoning, the court found that the Magistrates Court had exercised its discretion correctly and that there were no procedural errors in the original decision. The court held that the applicants had not demonstrated that the original decision was flawed or that there were grounds for a review. As a result, the court dismissed the motion to review and refused the application for an adjournment. Consequently, the proceedings were dismissed, and no further action could be taken regarding the original decision.

The final orders of the court were that the motion to review be dismissed, the application for an adjournment be refused, and the proceedings be dismissed. The court found that there were no grounds to set aside the original decision of the Magistrates Court and that the applicants had not provided sufficient evidence to justify a review. The decision was upheld, and the applicants were not granted any relief in relation to the original proceedings.

Orders