Kerrison v Buxton - [2000] TASSC 135

[2000] TASSC 135

CITATION: Kerrison v Buxton [2000] TASSC 135

PARTIES:  KERRISON, Nathan Geoffrey
  v
  BUXTON, Colin Henry

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  APPELLATE
FILE NO/S:  LCA 11/2000
DELIVERED ON:  26 September 2000
DELIVERED AT:  Burnie
HEARING DATES:  13 September 2000
JUDGMENT OF:  Slicer J

CATCHWORDS:

Magistrates - Jurisdiction and procedure generally - The hearing - Matters of procedural fairness and propriety - Power to permit evidence by video link.

Justices Act1959 (Tas), ss39, 85.
Evidence (Audio and Audio Visual Links) Act 1999 (Tas).
Justices Rules 1976 (Tas), r56G.
Evidence Act 1910 (Tas), ss122A, 122G, 122I.
R v Dunne (1928) 21 Cr App R 176; R v Reynolds [1950] 1 KB 606, referred to.
Aust Dig Magistrates [79]

REPRESENTATION:

Counsel:
             Applicant:  S G Wright
             Respondent:  M P Shirley
Solicitors:
             Applicant:  Temple-Smith Barclay
             Respondent:  Director of Public Prosecutions

Judgment Number: [2000] TASSC 135
Number of Paragraphs: 26

Serial No 135/2000
File No LCA 11/2000

NATHAN GEOFFREY KERRISON v COLIN HENRY BUXTON

REASONS FOR JUDGMENT SLICER J

26 September 2000

The applicant was charged with the crime of indecent assault, contrary to the Criminal Code, s127, in that he touched the vagina and "backside" of a young girl. The complainant was the daughter of the then partner of the applicant who, at the time of trial, had reason to be hostile to the applicant. The crime was said to have occurred in December 1996, and the complaint was made in May 1999. There was cogent evidence that independent of the allegation of improper sexual conduct involving the complainant, the mother had reason to remain hostile following the end of the relationship.

Central to the case was the credibility of the complainant. The complainant and her mother gave evidence by means of video link. It is obvious that there had been a preliminary discussion between prosecution and defence as to the mechanics of using the particular technology. However, when the matter came on for hearing, counsel for the applicant objected to the method of reception of evidence in the following terms:

"Ah, it's a question of interpretation of the evidence Audio, Visual Links Act, ah it's my submission that this Act ah, relates to evidence being given and submissions being made, ah, between states, um … that is … ah, there are, part two of part three of that Act, ah, relate to um, the … the procedure in how that can occur. Ah, the first, sorry, the part two, relates to the use of interstate Audio Links, and Audio Visual Links, in proceeding before a Tasmanian Court. And part three, relates to the use of interstate Audio Links and Audio Visual Links, in a proceeding, in a participating state, outside of Tasmania. The application of this Act, ah, Your Worship, provides ah, for this evidence and submissions to be made between states. Ah, this evidence today, is sort to be ah, given through the use of this technology, within the one state. Ah, and in…

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 Kerrison v Buxton

Details

AGLC: Kerrison v Buxton [2000] TASSC 135
Case: [2000] TASSC 135
Decision Date: 26 September 2000

CaseChat Overview and Summary

The case of Kerrison v Buxton involved an appeal by the applicant against a conviction by the magistrate. The applicant was found guilty of indecent assault. The case was principally concerned with the method of reception of evidence in the magistrate's court. The complainant and her mother gave evidence by video link. The applicant objected to the method of reception of evidence on the basis that the legislation permitted the reception of evidence by video link only between states and not within a state. The magistrate proceeded to permit the evidence to be given by video link. The applicant appealed on the ground that the magistrate had erred in law by permitting the reception of evidence by video link without the complainant and her mother being deemed "special witnesses" under the Evidence Act 1910. The appeal was heard by Slicer J.
The court examined the relevant statutory provisions and rules. The Evidence Act 1910 permitted the reception of evidence from a vulnerable witness in a location other than the courtroom. The Justices Act 1959 and Justices Rules 1976 permitted the reception of evidence by technological means. However, the court found that the Rules did not alter the substantive law of evidence. The court concluded that the magistrate had erred in law by permitting the reception of evidence by video link without the complainant and her mother being deemed "special witnesses" under the Evidence Act 1910. The court quashed the conviction and ordered the matter remitted for rehearing.

The court's decision highlights the need to balance the rights of an accused with the protection of vulnerable witnesses. While technology has enabled the reception of evidence from witnesses outside the courtroom, the court found that the use of such technology ought be subject to consideration of fairness and the effect of presence. The court concluded that the magistrate had erred in law by permitting the reception of evidence by video link without the complainant and her mother being deemed "special witnesses" under the Evidence Act 1910. The conviction was quashed and the matter remitted for rehearing.

Orders