Snooks, Dean Richard v Jones, Kelly Ann Lesley

[1998] TASSC 107

107/1998

PARTIES:  SNOOKS, Dean Richard
  v
  JONES, Kelly Anne Lesley

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  APPELLATE
FILE NO/S:  LCA 9/1998
DELIVERED:  2 September 1998
HEARING DATE/S:  2 September 1998
JUDGMENT OF:  Underwood J

CATCHWORDS:

[Edited reasons for judgment given orally]

REPRESENTATION:

Counsel:
           Applicant:  M P Bugg
           Respondent:  D J Barclay
Solicitors:
           Applicant:  Director of Public Prosecutions
           Respondent:  Temple-Smith Barclay

Judgment category classification:
Court Computer Code:  
Judgment ID Number:  107/1998
Number of pages:  2

Serial No 107/1998
File No LCA 9/1998

DEAN RICHARD SNOOKS v KELLY ANNE LESLEY JONES

REASONS FOR JUDGMENT  UNDERWOOD J
(DELIVERED ORALLY)  2 September 1998

This is a motion to review an order of dismissal of a complaint heard in a court of petty sessions.  The respondent was charged with one count of assault, contrary to the Police Offences Act 1935, s35(1) and one count of injuring property, contrary to the same Act, s37(1).

At the conclusion of the prosecution evidence, counsel for the respondent made a submission that there was no case to answer on two bases.  They were:

1. that there had been no, or no sufficient, evidence of the identification of the respondent as the person who committed either offence; and/or

1. that there was no sufficient evidence of the requisite mens rea attendant upon the commission of both crimes.

The learned magistrate upheld the first ground and held that there was no evidence of the identification of the respondent as the perpetrator of the two offences.  He decided it was unnecessary to determine the second ground, and dismissed the complaint.  This application is brought from that order of dismissal.

Mr Barclay, who appeared as counsel for the respondent, both in the court below and on the hearing of this motion, conceded that there was merit in grounds 1, 3 and 4, all of which related to the proposition that there was no sufficient evidence of identification.  He conceded that those grounds were made out and, accordingly, I made an order allowing the motion and quashing the order of dismissal.

However, Mr Barclay submitted that I should dispose of the motion in accordance with the power conferred by the Justices Act 1959, s110(2)(ab) which provides as follows:

"(ab)   in a case where the court considers that no substantial miscarriage of justice has occurred even though the cause or matter raised by the motion might be decided in favour of the applicant, dismiss the motion;"

Accordingly, the question is whether there has been no substantial miscarriage of justice by reason of the order of dismissal.  That is to be determined by deciding whether or not there was any evidence upon which a magistrate, properly instructed as to the law and acting reasonably, could have found that the respondent had the necessary mens rea that accompanies the actus reus of the two offences charged.

In a most helpful series of submissions, Mr Barclay submitted that the relevant mental element in count 1 was either an intention to apply force to the complainant, or foresight that the respondent's act of driving may have resulted in an application of such force and on count 2, a similar intention or foresight to cause damage to the complainant's motor vehicle.  I said during the course of Mr Barclay's submissions that I was not persuaded that the second alternative mens rea was open in relation to the assault but, as it turns out, I need not determine that issue because I am clearly satisfied that there was sufficient evidence to provide a case for the respondent to answer upon the basis that she intended the relevant application of force.
                   The evidence from the complainant was that by arrangement on the day in question, he went to collect his children from outside the school.  He had separated from his wife, the mother of those children.  It appears that the separation was acrimonious.  According to the complainant's evidence, as he collected his children, there was an extremely acrimonious exchange between him and the respondent.  He said that she was yelling out abuse, and then she said, "you'll be hearing from my lawyer next week".  At that stage, the complainant said he went back to the motor vehicle in which the respondent was sitting and said to her, "'what are you talking about' because I'd had enough of the boys and the courts and stuff".  He said that the respondent said, "what are you doing to those children, they don't want to live with you, they hate you and they don't want to live with you".  According to the complainant, he then said to her, "well, this is news to me, they're happy out there when they're with us, with Anne and I".  He said that the respondent then said, "the best thing I ever did was to leave you, that was ten years of hell she [sic] had while we were married". 

According to the complainant, there was a further exchange at that stage about awaiting for some decision in the Family Law Court and he then walked straight up the road to his vehicle which was parked a short distance in front of the respondent's vehicle.  He said that as he got to the back of his vehicle, the respondent's vehicle drove into the back of his legs and simultaneously hit the right rear of his car.  The force of the impact, according to the complainant, caused him to stumble and fall, a fall that he arrested by seizing a rail on the side of his motor vehicle.

Had the evidence stopped at that point, there might well have been some strength in Mr Barclay's submission, because there was no other material evidence from which a learned magistrate could reasonably infer an intention to deliberately strike the complainant.  However, the evidence from the complainant proceeded as follows.

"Q  Right.  And are you able to say what action the car took after it struck you?

A   Well, I, she backed off me and my vehicle and I got up and she was going to drive off and I got back to her door and took the keys out of her ignition because she was going to drive off and I said, 'what the hell do you think you're doing' and she said, 'ah, you was in the way'."

It seems to me that that is a most damaging admission from which a magistrate could infer, not must of course, but could infer that the application of force to the person of the complainant and to the complainant's car was deliberate.  On the basis of the complainant's evidence alone, I overrule Mr Barclay's submission.  I decline to dispose of the motion as he submitted I should do.  I will make an order that the matters of complaint be remitted to another magistrate for rehearing in accordance with law.

There will be an order that the respondent pay the complainant's taxed costs of the motion to review.  There will be a further order, that the respondent be granted an indemnity certificate, pursuant to the provisions of the Appeal Costs Fund Act, s8.