McKenna v Freeman - [2017] TASSC 64

[2017] TASSC 64

COURT: SUPREME COURT OF TASMANIA

CITATION: McKenna v Freeman [2017] TASSC 64

PARTIES:  McKENNA, Angela Maree
  v
  FREEMAN, Andrew

LYONS, Jason

FILE NO:  2031/2017
DELIVERED ON:  8 November 2017
DELIVERED AT:  Burnie
HEARING DATE:  3 November 2017
JUDGMENT OF:  Pearce J

CATCHWORDS:

Magistrates – Appeal and review – Tasmania – Motion to review – Point not raised below – Collateral challenge to police family violence order not available on hearing of motion.
Justices Act 1959 (Tas), s 107.

Traynor v McCullough [2011] TASSC 41, 218 A Crim R 177; Coppleman v Godfrey [2014] TASSC 60, followed.

Krulow v Glamorgan Spring Bay Council [2013] TASFC 11, 23 Tas R 264, applied.
Aust Dig Magistrates [1346]

REPRESENTATION:

Counsel:
             Applicant:  In person
             Respondents:  S Thompson
Solicitors:
             Applicant:  N/A
             Respondents:  Director of Public Prosecutions

Judgment Number: [2017] TASSC 64
Number of paragraphs: 11

Serial No 64/2017
File No 2013/2017

ANGELA MAREE McKENNA v ANDREW FREEMAN and JASON LYONS

REASONS FOR JUDGMENT PEARCE J

8 November 2017

Angela McKenna applied under the Justices Act 1959, s 107(6), for an extension of time to file and serve a motion to review findings made by a magistrate, Ms T Jago, on 5 May 2017. The notice to review concerns two separate complaints and challenges the learned magistrate's findings on both complaints. On 3 November 2017 I ordered that the extension for time be allowed for the motion as it concerns the findings on one complaint but not the other. These are the reasons for that order.
On one complaint the applicant was charged with one count of common assault. On a separate complaint the applicant was charged with six counts of breaching a police family violence order made on 15 August 2015. The complaints were heard together on 5 May 2017. The magistrate found the charge of common assault proved and fined the applicant $650 without conviction. As to the complaint alleging breach of a police family violence order, the prosecution tendered no evidence on two counts. One count, which alleged a breach on 25 April 2016, had already been dismissed after the magistrate found there was no case to answer. The magistrate found that one count had not been proved. The remaining two counts, which alleged breaches on 15 March 2016 and 31 March 2016, were both found proved. For those charges the magistrate made an order under the Sentencing Act 1997, s 7(f), adjourning the proceedings against the applicant without conviction for 12 months on her giving an undertaking to not commit an offence punishable by imprisonment during that period.
This application is necessary because the applicant filed a notice to review on 14 July 2017, outside the 21 day time limit imposed by the Justices Act 1959, s 107(3). The application for an extension of time was filed on 9 October 2017. It was heard on 3 November 2017. The applicant appeared unrepresented. I concluded that the motion, as it applies…

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 McKenna v Freeman

Details

AGLC: McKenna v Freeman [2017] TASSC 64
Case: [2017] TASSC 64
Decision Date: 8 November 2017

CaseChat Overview and Summary

McKenna and Freeman's case before the court involved an appeal against a decision made by a magistrate in Tasmania. The dispute centred on a motion to review a decision regarding a family violence order issued against the defendant, Freeman. The applicant, McKenna, sought to challenge the validity of the police family violence order through a collateral attack during the hearing of the motion. The matter was heard by the Supreme Court of Tasmania, which was tasked with determining whether the court could consider such a challenge under the circumstances presented.

The primary legal issue the court had to address was whether a point not raised at the original hearing could be considered in a motion to review. Specifically, the court needed to ascertain if a collateral challenge to the validity of a police family violence order could be entertained when it was not previously raised before the magistrate. The court also had to consider the procedural constraints and the established principles of finality and consistency in legal proceedings.

The court ruled that a collateral challenge to a police family violence order was not permissible during the hearing of a motion to review if the issue had not been raised at the original hearing. The court held that such challenges could only be brought through appropriate and timely means, and not as a means of circumventing the original decision. The court emphasised the importance of adhering to procedural fairness and the principle that final decisions should not be subject to collateral attacks. Consequently, the motion to review was dismissed, and the original decision remained intact.

The court's decision underscored the necessity of raising all relevant points during the original hearing to ensure a fair and comprehensive review. The final orders of the court confirmed the dismissal of the motion to review and upheld the validity of the police family violence order against Freeman.

Orders