Mohamad v McDonald - [2010] TASSC 45

[2010] TASSC 45

COURT: SUPREME COURT OF TASMANIA

CITATION: Mohamad v McDonald [2010] TASSC 45

PARTIES:  MOHAMAD, Mohamad
  v
  McDONALD, Scott

FILE NO/S:  413/2010
DELIVERED ON:  7 October 2010
DELIVERED AT:  Hobart
HEARING DATE:  4 October 2010
JUDGMENT OF:  Tennent J

CATCHWORDS:

Magistrates – Appeals and review – Tasmania – Motion to review – The hearing – Generally.
Roughley v R (1995) 5 Tas R 8, applied.
Justices Act 1959 (Tas), s110.
Aust Dig Magistrates [272]

REPRESENTATION:

Counsel:
             Applicant:                   G T Stevens
             Respondent:              S Nicholson
Solicitors:
             Applicant:                   E R Henry Wherrett & Benjamin
             Respondent:              Director of Public Prosecutions

Judgment Number: [2010] TASSC 45
Number of paragraphs: 35

Serial No 45/2010
File No 413/2010

MOHAMAD MOHAMAD v SCOTT McDONALD

REASONS FOR JUDGMENT TENNENT J

7 October 2010

The applicant has applied to review his conviction by a magistrate on one count of assault. The allegation of assault arose out of an incident which occurred at a nightclub known as Curlys situated in Murray Street in Hobart. It was alleged that the applicant unlawfully assaulted Nawwar Alshawi ("the complainant") by punching him to the head.

The learned magistrate heard evidence from the complainant and a friend, a Mr Hesari, for the prosecution, and the applicant, a Mr Anagnostis and a Mr Yousef Mohamad for the defence. All the evidence was heard on 9 April 2010, the incident having occurred on 12 July 2009, some nine months earlier. The learned magistrate reserved his decision and delivered written reasons on 19 May 2010. He found the complaint proved.

The notice to review was in the following terms:

"1That the learned magistrate erred in law in holding that, upon the whole of the evidence, the complaint was proved beyond a reasonable doubt.
2That the learned magistrate erred in law in finding that the complainant had suffered a broken jaw and that the injury corroborated the complainant's version of events

PARTICULARS
a There was no evidence admissible on the hearing that the complainant had suffered a broken jaw.
b The evidence given by the complainant as to the broken jaw was hearsay and inadmissible.
3That the learned magistrate erred in fact and/or in law in discounting the evidence of the applicant on the basis that it is likely that his recollection was impaired by alcohol.
4That the learned magistrate erred in law in finding that it was likely that the applicant had consumed alcohol at the nightclub when there was no evidence that the applicant had consumed alcohol.
5The learned magistrate erred in fact and/or in law in discounting the evidence of the applicant on the basis that he did not have a good recollection of events.
6The learned magistrate erred in fact in finding that the applicant denied approaching the complainant.
7That the learned magistrate erred in law in finding that evidence given by the witness Yousef Mohamad called for the defence should be discounted.

PARTICULARS
The finding that Yousef Mohamad's evidence lacks detail was not supported by the evidence.
The finding that Farzin Hesari…

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 Mohamad v McDonald

Details

AGLC: Mohamad v McDonald [2010] TASSC 45
Case: [2010] TASSC 45
Decision Date: 7 October 2010

CaseChat Overview and Summary

Mohamad was the appellant in a case heard by the Magistrates Court of Tasmania, where he sought a review of a previous decision. The respondent was McDonald, who was not present at the review hearing. The dispute centred on the procedural fairness and the appropriate way to conduct a review hearing in the Magistrates Court of Tasmania. The appellant argued that the review hearing was not conducted in a manner that was procedurally fair and that the court should have allowed certain evidence that was excluded during the hearing.

The legal issues before the court included whether the appellant was afforded procedural fairness during the review hearing, and whether the court should have admitted certain evidence that was excluded. The court needed to determine if the manner in which the review hearing was conducted complied with the principles of procedural fairness and whether the exclusion of evidence was justified.

The court found that the review hearing was conducted in a manner that was procedurally fair, and that the exclusion of certain evidence was justified. The court emphasised that procedural fairness is not a rigid concept and that it must be assessed in the context of the specific circumstances of each case. The court held that the appellant was given an adequate opportunity to present his case and that the exclusion of evidence was reasonable given the nature of the review hearing. The court concluded that the review hearing was conducted in a manner that was procedurally fair and that the exclusion of evidence did not result in a miscarriage of justice.

The court dismissed the appeal, finding that the review hearing was conducted in a manner that was procedurally fair and that the exclusion of evidence was justified. The court did not make any further orders.

Orders