Shepperd v Cannell - [2018] TASSC 12

[2018] TASSC 12

COURT: SUPREME COURT OF TASMANIA

CITATION: Shepperd v Cannell [2018] TASSC 12

PARTIES:  SHEPPERD, Dylan Trent
  v
  CANNELL, Lauren (Sergeant)

FILE NO:  3064/2017
DELIVERED ON:  20 March 2018
DELIVERED AT:  Burnie
HEARING DATE:  27 February 2018
JUDGMENT OF:  Brett J

CATCHWORDS:

Magistrates – Hearing – Evidence – Other matters – Matters relating to decision – Applicant alleged magistrate erred in assessment of complainant as reliable and applicant as unreliable due to inconsistencies with the objective evidence – Magistrate, as a fact finder, was entitled to believe the evidence of the complainant and reject the evidence of the applicant – Magistrate provided adequate reasons for acceptance of the complainant's version and rejection of that of the applicant – Finding of guilt reasonably open to magistrate.

Phillips v Arnold [2009] TASSC 43, 19 Tas R 21, considered.
Wood v Smith [1991] TASSC 12; Nilsson v McDonald [2009] TASSC 66, 19 Tas R 173; Fenton v Lane [2015] TASSC 61, cited.
Aust Dig Magistrates [1153].

Magistrates – Appeal and review – Tasmania – Motion to review – Other matters – Sentence – Sentence was within the reasonable exercise of the sentencing discretion of the magistrate.

Barrett v Wilson [2015] TASSC 3, 69 MVR 333, cited.
Aust Dig Magistrates [1349]

REPRESENTATION:

Counsel:
             Applicant:  M Doyle
             Respondent:  S Thompson
Solicitors:
             Applicant:  Clarke and Gee Lawyers
             Respondent:  Director of Public Prosecutions

Judgment Number: [2018] TASSC 12
Number of paragraphs: 35

Serial No 12/2018
File No 3064/2017

DYLAN TRENT SHEPPERD v SERGEANT LAUREN CANNELL

REASONS FOR JUDGMENT BRETT J

20 March 2018

This motion concerns a complaint which charged the applicant with one count of common assault and one count of breaching a police family violence order. The charge of common assault alleged that on 12 January 2017, the applicant assaulted his then partner "by holding her down and punching her multiple times". The charge of breach of a police family violence order alleged that that act of assault constituted a breach of an extant police family violence order, which had been made approximately six months earlier and included a condition that the applicant was not to directly or indirectly threaten, harass, abuse or assault the complainant. The existence and application of the said order was not in dispute.
The applicant pleaded not guilty to the charges. On 10 October 2017, Magistrate S Brown, after hearing the complaint, found the charges proved. His Honour convicted the applicant of both offences and imposed a global sentence of 28 days' imprisonment. The applicant now moves this Court to review both conviction and sentence.
There are eight grounds contained in the notice of motion that relate to conviction. The first ground alleges that the decision of the learned magistrate is unsafe and unsatisfactory. The remaining grounds complain about specific aspects of his Honour's reasoning. On the hearing of the motion, the applicant's counsel, Mr Doyle, conceded that the test applicable to the first ground…

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 Shepperd v Cannell

Details

AGLC: Shepperd v Cannell [2018] TASSC 12
Case: [2018] TASSC 12
Decision Date: 20 March 2018

CaseChat Overview and Summary

The case of Shepperd v Cannell involved a dispute between the applicant, who was appealing against a conviction, and the respondent, who was the complainant in a criminal matter. The appeal was heard in the relevant appellate court. The applicant argued that the magistrate had erred in assessing the complainant as reliable and the applicant as unreliable due to inconsistencies between the complainant’s evidence and objective evidence. The applicant contended that the magistrate should not have believed the complainant's evidence and should have accepted the applicant's version of events.

The legal issues that the court was required to decide involved the magistrate's role as a fact finder and the assessment of the credibility of the evidence presented. Specifically, the court needed to determine whether the magistrate was entitled to believe the complainant's evidence over that of the applicant, and whether the reasons provided by the magistrate for accepting one version of events over the other were adequate. The court also needed to assess whether the finding of guilt was reasonably open to the magistrate based on the evidence presented.

The court found that the magistrate, as a fact finder, was entitled to believe the evidence of the complainant and reject the evidence of the applicant. The court held that the magistrate provided adequate reasons for accepting the complainant's version of events and rejecting that of the applicant. The court concluded that the finding of guilt was reasonably open to the magistrate based on the evidence presented, and that the magistrate's decision was not flawed by any error of law or significant procedural irregularity. Therefore, the appeal was dismissed, and the conviction was upheld.

No additional orders were made by the court beyond dismissing the appeal and upholding the conviction. The decision underscores the principle that, in criminal cases, the trier of fact is entitled to assess the credibility of witnesses and make findings based on the evidence presented, provided those findings are reasonable and supported by the evidence.

Orders