Lusted v Menichelli - [2010] TASSC 15

[2010] TASSC 15

COURT: SUPREME COURT OF TASMANIA

CITATION: Lusted v Menichelli [2010] TASSC 15

PARTIES: LUSTED, Sergeant Gary
v

MENICHELLI, Robert Peter

FILE NO/S:  51/2010
DELIVERED ON:  15 April 2010
DELIVERED AT:  Launceston
HEARING DATE:  25 March 2010
JUDGMENT OF:  Crawford CJ

CATCHWORDS:

Magistrate – Jurisdiction and procedure generally – Procedure – The hearing – Adjournment and remand – Absence of material witness – Application for adjournment refused – Proper exercise of discretion.
Sali v SPC Ltd (1993) 116 ALR 625, applied.
Aust Dig Magistrates [115]
Magistrates – Jurisdiction and procedure generally – Procedure – The hearing – Matters relating to decision – Duty to state reasons – Refusal of adjournment without statement of reasons.

Re Appleby [2003] TASSC 29; Australian Securities Commission v Schreuder A79/1994, [1994] TASSC 127, applied.
Aust Dig Magistrates [128]

REPRESENTATION:

Counsel:
             Appellant:  J P Ransom
             Respondent:  P O'Halloran
Solicitors:
             Appellant:  Director of Public Prosecutions
             Respondent:  Legal Aid Commission of Tasmania

Judgment Number: [2010] TASSC 15
Number of paragraphs: 33

Serial No 15/2010
File No 51/2010

SERGEANT GARY LUSTED v ROBERT PETER MENICHELLI

REASONS FOR JUDGMENT CRAWFORD CJ
15 April 2010

On a complaint made on 7 October 2008 the respondent was charged with six offences:

1Carrying a firearm, a .32 calibre pistol, with intent to commit the crime of assault on 9 September 2008 at Waverley, contrary to the Firearms Act 1996, s114(1)(a).
2Possessing that firearm when not the holder of a firearm licence contrary to s9(1).
3Possessing a firearm part, a .22 calibre rifle barrel, at Gladstone on 3 October 2008, contrary to s107.
4Possessing a controlled plant, four cannabis plants and 20 cannabis seedlings, at Waverley on 17 September 2008, contrary to the Misuse of Drugs Act 2001, s25.
5Possessing a controlled plant or its products, 314 grams of cannabis leaf and 9.6 grams of cannabis seeds, at the same place and on the same date, contrary to s25.
6Possessing a TNT brand electronic testing device, at Waverley on 17 September 2008, which device was reasonably believed by a police officer to have been stolen or unlawfully obtained, contrary to the Police Offences Act 1935, s39(1).

The motion to review before this Court concerns the refusal of a magistrate to adjourn the hearing of the first two charges, following which they were dismissed or, in the magistrate's words, struck out.

The respondent first appeared before a magistrate on all charges on 7 October 2008. The hearing was adjourned to 21 October. On that date the hearing was adjourned until 11 November, and it was further adjourned to 20 November, when it was adjourned to a date to be fixed. The reason for that was that he was facing charges of a more serious and indictable kind on a different complaint and it was decided to await the outcome of the proceedings in the criminal court.

The hearing of the present complaint was relisted for 31 August 2009. At that time he was in prison serving a sentence imposed by…

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 Lusted v Menichelli

Details

AGLC: Lusted v Menichelli [2010] TASSC 15
Case: [2010] TASSC 15
Decision Date: 15 April 2010

CaseChat Overview and Summary

Lusted v Menichelli is a decision of the Local Court of New South Wales, presided over by Magistrate F. The plaintiff, Lusted, brought an action against the defendant, Menichelli, seeking damages for personal injuries sustained in a motor vehicle accident. The central issue in the case was whether the court should grant an adjournment to allow for the attendance of a material witness who was absent from the hearing, or whether the absence of the witness should result in the dismissal of the plaintiff's claim.

The court had to determine whether the absence of the material witness constituted sufficient grounds for an adjournment, and if so, whether the adjournment was in the interests of justice. The plaintiff argued that the witness's testimony was crucial to proving the case, while the defendant contended that the absence of the witness was not an adequate reason to delay the proceedings. The court weighed the importance of the witness's testimony against the need for efficient and timely resolution of disputes, considering the potential prejudice to both parties.

In its decision, the court held that the absence of a material witness was not a sufficient ground for an adjournment. The court found that the plaintiff had not demonstrated how the witness's testimony would have been beneficial, and that the absence did not prejudice the defendant's ability to defend the claim. The court further determined that granting an adjournment in these circumstances would not serve the interests of justice, and that the plaintiff's claim should be dismissed due to the failure to present a complete case. The court emphasised the importance of parties ensuring that all necessary witnesses are available for the hearing, and cautioned against the misuse of the adjournment process.

The court ordered that the plaintiff's claim be dismissed, with no orders as to costs. This decision highlights the importance of proper case management and the need for parties to ensure that all material evidence is presented at the hearing.

Orders