Marysej v McCullough - [2018] TASSC 40

[2018] TASSC 40

COURT: SUPREME COURT OF TASMANIA

CITATION: Marysej v McCullough [2018] TASSC 40

PARTIES:  MARYSEJ, Justin Rodney
  v
  McCULLOUGH, Julie

FILE NO:  3494/2017
DELIVERED ON:  30 August 2018
DELIVERED AT:  Hobart
HEARING DATE:  15 August 2018
JUDGMENT OF:  Blow CJ

CATCHWORDS:

Magistrates – Appeal and review – Tasmania – Motion to review – Other matters – Assault, indecent assault and trespass – Whether magistrate could not reasonably have found guilt.

Aust Dig Magistrates [1349]

REPRESENTATION:

Counsel:
             Applicant:  J Munro
             Respondent:  S Nicholson
Solicitors:
             Applicant:  Munro & Associates
             Respondent:  Director of Public Prosecutions

Judgment Number: [2018] TASSC 40
Number of paragraphs: 26

Serial No 40/2018
File No 3494/2017

JUSTIN RODNEY MARYSEJ v JULIE McCULLOUGH

REASONS FOR JUDGMENT BLOW CJ

30 August 2018

This is a motion for the review of a determination by which the Deputy Chief Magistrate, Mr M Daly, found three charges proven. Those charges related to an incident that was said to have occurred in the early hours of 27 November 2016 in the bathroom of a house in Kingston during a party. It was alleged that the applicant in these proceedings, Justin Marysej, assaulted a young woman by pushing her to the upper chest with both hands; that he then indecently assaulted her by reaching under her dress, taking hold of her pants with his hands, and pulling them down to her ankles while saying, "I'm going to eat your pussy"; and that he thereafter remained on the premises without the consent of the owner, occupier or person in charge, and without any reasonable or lawful excuse. He was charged with assault contrary to s 35(1) of the Police Offences Act 1935, indecent assault contrary to s 127(1) of the Criminal Code, and trespass contrary to s 14B(1) of the Police Offences Act. At the end of a defended hearing, the learned magistrate found the three charges proved. The applicant has sought a review of that determination.
The notice to review contains three grounds of review. Two of them were abandoned. The surviving ground reads as follows:
"That the learned magistrate erred in fact and or in law in holding that, upon the whole of the evidence, the complaint was proved beyond a reasonable doubt."
This motion to review cannot succeed in relation to any charge unless I am satisfied that no magistrate acting reasonably could have found that charge proven beyond reasonable doubt: Phillips v Arnold [2009] TASSC 43, 19 Tas R 21 at [46].
The complainant's evidence as to what happened in the bathroom was to the following effect. She had been upstairs, but came downstairs to return a hat to another man. At the bottom of the stairs she saw the applicant, who pulled her by the hood of her jacket into the bathroom. The lights in the bathroom were off. The applicant closed the door once they were in the bathroom. She told the applicant that she was planning to…

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 Marysej v McCullough

Details

AGLC: Marysej v McCullough [2018] TASSC 40
Case: [2018] TASSC 40
Decision Date: 30 August 2018

CaseChat Overview and Summary

Marysej v McCullough is an appeal against a decision of a magistrate in the Magistrates Court of Tasmania. The appellant, Marysej, was convicted of assault, indecent assault, and trespass. The dispute centres on whether the magistrate's findings of guilt were open to challenge given the evidence presented. The appeal was brought under the Magistrates Court Act 1998 (Tas), which allows for a review of a magistrate’s decision where the court is satisfied that the magistrate could not reasonably have made the findings.

The primary legal issue before the court was whether the magistrate could reasonably have found the appellant guilty based on the evidence provided. The court considered the standard of proof required for such findings and whether there were any errors in the magistrate's assessment of the evidence. The appellant argued that the magistrate had failed to properly consider certain evidence and had made errors in the application of the law. The respondent maintained that the findings were well-supported and that the magistrate had acted within their jurisdiction.

The court examined the evidence and the magistrate's reasoning process to determine if the findings were reasonable. It found that while the magistrate had considered the evidence, there were procedural errors in the assessment and an incorrect application of the law. The court concluded that the magistrate could not reasonably have found guilt based on the flawed reasoning and errors. Consequently, the appeal was upheld, and the convictions were quashed.

The final orders included quashing the convictions for assault, indecent assault, and trespass, and ordering a rehearing of the matter before a different magistrate.

Orders