Nettlefold-Calam v Woodhouse - [2020] TASSC 35

[2020] TASSC 35

COURT: SUPREME COURT OF TASMANIA

CITATION: Nettlefold-Calam v Woodhouse [2020] TASSC 35

PARTIES:  NETTLEFOLD-CALAM, Lillian Mae
  v
  WOODHOUSE, Rebecca (Senior Constable)

FILE NO:  LCA 218/2020
DELIVERED ON:  6 July 2020
DELIVERED AT:  Hobart
HEARING DATE:  On the papers
JUDGMENT OF:  Estcourt J

CATCHWORDS:

Magistrates – Appeal and review – Tasmania – Motion to review –Appeal against findings of guilt in respect of various driving related charges – Reckless driving – Open to magistrate to find charges of reckless driving beyond reasonable doubt – Common assault – Applicant entitled to act in self-defence – Magistrate erred in finding that applicant used excessive force – Finding of excessive force not reasonably open on evidence – Magistrate erred by drawing inference that was not open on factual basis adopted for decision – Failure to stop and assist in case of accident – Applicant unaware that complainant may have been injured – Charge not proven beyond reasonable doubt.

Police Offences Act1935 (Tas), s 35(1).
Traffic Act1925 (Tas), ss 31(1), 33(2), 101(4).
McBride v The Queen (1967) 40 ALJR 57; Palmer v The Queen [1971] AC 814; R v Lawrence [1981] 1 All ER 974; Phillips v Arnold [2009] TASSC 43, 19 Tas R 21, referred to.
Aust Dig Magistrates [1350]

REPRESENTATION:

Counsel:
             Applicant:  G Stevens
             Respondent:  D Earley
Solicitors:
             Applicant:  Murdoch Clarke
             Respondent:  Director of Public Prosecutions

Judgment Number: [2020] TASSC 35
Number of paragraphs: 54

Serial No 35/2020
File No LCA 218/2020

LILLIAN MAE NETTLEFOLD-CALAM v
SENIOR CONSTABLE REBECCA WOODHOUSE

REASONS FOR JUDGMENT ESTCOURT J

6 July 2020

The proceedings

The applicant, Lillian Mae Nettlefold-Calam, moves this Court, by notice to review, to set aside the orders of Chief Magistrate Geason, made on 29 July 2019, whereby her Honour found proved, charges 1, 3 and 4 on complaint number 7905/18, laid by the respondent, Senior Constable Rebecca Woodhouse, against the applicant, charging the applicant with the offence of reckless driving, contrary to s 31(1) of the Traffic Act 1925, the offence of assault, contrary to s 35(1) of the Police Offences Act 1935, and the offence of failing to stop and stay at the scene of a crash, contrary to s 33(2) of the Traffic Act.
The grounds of the notice to review as to the offence of reckless driving are as follow:
"1The learned magistrate erred in law in holding that the applicant's driving was reckless.
2The learned magistrate erred in law in failing to determine objectively whether the risk of injury or damage was obvious and serious by reference to the standard of an ordinarily prudent driver in the circumstances that applied at the time of the driving."
The grounds of the notice to review as to the offence of assault are as follow:
"3The learned Magistrates erred in fact and/or law in failing to consider the lawfulness of the applicant's application of force in the circumstances as the appellant believed them to be…

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.

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Details

Case: [2020] TASSC 35
Decision Date: 6 July 2020

CaseChat Overview and Summary

The matter of Nettlefold-Calam v Woodhouse was brought before the court as an appeal against findings of guilt in respect of various driving related charges. The case was heard in the Magistrates Court of Tasmania, where the applicant was found guilty of reckless driving, common assault, and failure to stop and assist in case of an accident. The applicant sought a review of the decision, arguing that the magistrate erred in finding them guilty beyond reasonable doubt on all charges.

The primary legal issues addressed by the court were whether the magistrate was correct in finding the applicant guilty of reckless driving, whether the applicant was entitled to act in self-defence in the case of common assault, and whether the applicant was aware that the complainant may have been injured in the case of failure to stop and assist. The court examined the evidence presented and the magistrate's reasoning to determine if the findings were reasonable and supported by the evidence.

In its reasoning, the court found that the magistrate was indeed open to finding the applicant guilty of reckless driving beyond reasonable doubt. However, in the case of common assault, the court held that the magistrate erred in finding that the applicant used excessive force. The court concluded that the finding of excessive force was not reasonably open on the evidence, and that the magistrate had erred by drawing an inference that was not open on the factual basis adopted for the decision. Finally, in relation to the failure to stop and assist charge, the court found that the applicant was unaware that the complainant may have been injured, and thus the charge was not proven beyond reasonable doubt.

As a result of the court's findings, the applicant's appeal was upheld in part, with the charges of reckless driving remaining, but the charges of common assault and failure to stop and assist being dismissed. The court ordered a review of the sentences imposed, taking into account the dismissal of the two charges.

Orders