Reardon v Donaghy - [2006] TASSC 47

[2006] TASSC 47

CITATION: Reardon v Donaghy [2006] TASSC 47

PARTIES:  REARDON, Penelope Lynn
  v
  DONAGHY, Brendan Oliver

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  APPELLATE
FILE NO/S:  LCA 32/2006
DELIVERED ON:  14 June 2006
DELIVERED AT:  Hobart
HEARING DATE:  13 June 2006
JUDGMENT OF:  Evans J

CATCHWORDS:

Magistrates – Appeals from and control over magistrates – Tasmania – Motion to review – When remedy available – Failure to adjourn hearing.

Justices Act1959 (Tas), s107.
Aust Dig Magistrates [270]

REPRESENTATION:

Counsel:
           Applicant:  S J Bender
           Respondent:  P Barker
Solicitors:
           Applicant:  Director of Public Prosecutions
           Respondent:  PWB Lawyers

Judgment Number: [2006] TASSC 47
Number of paragraphs: 10

Serial No 47/2006
File No LCA 32/2006

PENELOPE LYNN REARDON v BRENDAN OLIVER DONAGHY

REASONS FOR JUDGMENT EVANS J

14 June 2006

On 2 May 2005, a complaint issued charging the respondent, Brendan Donaghy, with common assault in breach of the Police Offences Act 1935, s35(1). The particulars of the charge are that on 10 April 2005 he unlawfully assaulted Margaret Donaghy by: saying the words "I've had enough of you, I'm going to kill you, you're going to die"; grabbing her in a headlock and choking her; pulling her down onto the floor and pinning her to the floor; and telling her to open her eyes because he was going to be the last person she saw before she died.

The record of proceedings shows that on 16 June 2005 the respondent pleaded not guilty to the complaint and it was adjourned for "contest mention". Following a contest mention hearing on 27 October 2005, the complaint was adjourned for hearing on 17 March 2006 when, due to insufficient court time, the hearing was further adjourned to Friday, 21 April 2006. On that day, when the complaint was called on for hearing, Mr Boonstra appeared for the applicant, Penelope Reardon, and Mr Barker appeared for the respondent. Mr Boonstra explained to the presiding magistrate that due to an administrative error, the witness summonses which had been issued required the witnesses to attend on 21 May 2006 instead of 21 April 2006. He informed the magistrate that he had spoken to the complainant at length and she wanted the matter to continue and he applied for an adjournment of the complaint for hearing on another day. The unedited transcript of what then ensued is as follows:

"HIS HONOUR: Mr Barker, I suppose you oppose it?
MR BARKER: I do oppose it, your Honour, I must - my client is here ready to proceed with the matter. He wants it over and done with, as does the complainant, as quickly as possible because he wants to go to Western Australia to earn his living as a bricklayer, which is difficult here. We have a witness over from Western Australia for the purposes of the hearing today, and so I must oppose it.
That having been said, it's a human enough error that's been made in the prosecution section of the kind which I might…

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 Reardon v Donaghy

Details

AGLC: Reardon v Donaghy [2006] TASSC 47
Case: [2006] TASSC 47
Decision Date: 14 June 2006

CaseChat Overview and Summary

The case of Reardon v Donaghy was heard in the Tasmanian Court of Criminal Appeal. The matter arose from an appeal against a decision made by a magistrate. The appellant, Reardon, was challenging the magistrate's refusal to adjourn a hearing on the grounds that it resulted in a failure of justice. Reardon argued that the refusal to adjourn led to significant prejudice, as key evidence was not presented, and an adjournment would have allowed for the evidence to be obtained and presented.

The central legal issues revolved around the availability of a remedy through a motion to review in cases where a magistrate fails to adjourn a hearing, and whether such a failure constitutes a failure of justice. The court was required to determine whether the refusal to adjourn, which prevented the presentation of crucial evidence, warranted a review of the magistrate's decision. Furthermore, the court needed to consider whether the failure to adjourn amounted to a failure of justice that would justify the intervention of the appellate court.

The court considered the principles governing appeals from and control over magistrates' decisions, particularly in relation to the refusal to adjourn a hearing. It examined the circumstances surrounding the failure to adjourn and its impact on the proceedings. The court concluded that where a refusal to adjourn results in a significant failure of justice, such as the inability to present key evidence, a remedy through a motion to review may be available. The court found that the refusal to adjourn in this case did indeed amount to a failure of justice, as it prevented the presentation of critical evidence that could have affected the outcome of the hearing. Consequently, the court allowed the appeal and remitted the matter to the magistrate for reconsideration.

Orders