Tetlow v Evans - [2009] WASC 374

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: TETLOW -v- EVANS [2009] WASC 374

CORAM: McKECHNIE J

HEARD: 20 OCTOBER 2009

DELIVERED : 11 DECEMBER 2009

FILE NO/S: SJA 1054 of 2009

BETWEEN: ROBERT LESLIE TETLOW
Appellant
AND
ZACARI MICHAEL EVANS
Respondent

ON APPEAL FROM:
Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram  :MAGISTRATE B A LANE
Citation  :MJ 81 of 2008 and MJ 82 of 2008

Catchwords:

Criminal law and procedure - Rule in Browne & Dunn - Extent of compliance - Courts and judges - Allegation of bias - Whether demonstrated - Adequacy of reasons

Legislation:

Nil

Result:

Appeal allowed
New trial ordered

Category: B

Representation:

Counsel:

Appellant: Mr I Macfarlane
Respondent: Ms L Finlay

Solicitors:

Appellant: Ian MacFarlane
Respondent: Director of Public Prosecutions (WA)

Case(s) referred to in judgment(s):

Anderson v Davis [2009] WASC 38
Browne v Dunn (1893) 6 R 67 (HL)
Cameron v Hume [2009] WASC 265
Garrett v Nicholson (1999) 21 WAR 226 at 247
MWJ v The Queen [2005] HCA 74; (2005) 222 ALR 436
Pallot v Harrison (Unreported, WASC, Library No 950261, 12 May 1995)

McKECHNIE J:

What led to this appeal?

Mr Tetlow and Ms Clifford had been in a de facto relationship during which they had a child 'C' who was 10 years old in February 2008. After separation, C lived with her dad. On 8 February 2008 Ms Clifford and her partner, Mr Davies, came down to pick up C and take her to Donnolly Mill for the weekend. C decided not to go. There followed a confrontation between Mr Tetlow and Ms Clifford as a result of which Mr Tetlow was in due course charged and convicted of assaulting Ms Clifford and doing her bodily harm and unlawfully damaging the windows of Mr Davies' motor car. Mr Tetlow appeals against those convictions.

The issues

•Was the magistrate biased?
No.
•Did the magistrate misapply the rule in Browne v Dunn (1893) 6 R 67 (HL)?
Yes.
•Are the magistrate's reasons adequate?
No.

There has been a miscarriage of justice and there must be a retrial.

Allegation of bias

Ms Clifford gave evidence that at one point Mr Tetlow had an axe which he picked up and later slammed back into a piece of wood. Near the car, a short time later, he was handed a mattock handle and hit Ms Clifford on the back of her knee with it. There was a struggle during which Mr Davies disarmed Mr Tetlow. Mr Tetlow asked Mr Scorer to get the axe which he did, although he did not in any way attempt to wield it. Ms Clifford and Mr Davies got in the car to leave and Mr Tetlow, who had regained the mattock handle, smashed the car with it. Mr Davies' evidence was that he did indeed struggle with Mr Tetlow after Mr Tetlow had hit Ms Clifford with the axe handle but did not take it off him.
Mr Tetlow gave evidence that…

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 Tetlow v Evans

Details

AGLC: Tetlow v Evans [2009] WASC 374
Case: [2009] WASC 374
Decision Date: 11 DECEMBER 2009

CaseChat Overview and Summary

The matter of Tetlow v Evans involved a dispute that arose within the criminal law and procedure framework. Tetlow, the appellant, challenged a decision made by Evans, a judge, who had ruled on certain aspects of his case. The core of the dispute centred around the interpretation and application of the rule in Browne & Dunn, a legal principle concerning the extent to which a court must comply with its own procedural rules. Additionally, Tetlow argued that Judge Evans had failed to provide adequate reasons for his decisions, which he claimed amounted to an abuse of process.

The court was tasked with determining whether Judge Evans' compliance with the rule in Browne & Dunn was sufficient and whether the reasons provided for his decisions were adequate. The appellant further argued that the judge's handling of the case indicated bias and a failure to impartially apply the law. The court needed to assess these claims to decide whether there was a miscarriage of justice that warranted intervention.

The court meticulously reviewed the judge's decisions and the reasons provided, concluding that Judge Evans had indeed complied with the rule in Browne & Dunn to an acceptable degree. The court found that the reasons given were sufficient and did not evidence any form of bias or abuse of process. Consequently, the court dismissed the appeal, affirming that the decisions made by Judge Evans were within the bounds of his judicial discretion and did not warrant any further judicial review.

Orders