Turner v Horan - [2021] TASSC 16

[2021] TASSC 16

COURT:	SUPREME COURT OF TASMANIA
CITATION:	Turner v Horan [2021] TASSC 16
PARTIES:	TURNER, Andrew Michael
v
HORAN, Melinda
FILE NO:	2903/2020
DELIVERED ON:	16 April 2021
DELIVERED AT:	Burnie
HEARING DATE:	14 April 2021
JUDGMENT OF:	Pearce J
CATCHWORDS:

Magistrates – Appeal and review – Tasmania – Motion to review – Other matters – Appeal against finding of guilt on one count of common assault which was also a breach of a family violence order – Finding of

guilt reasonably open to the magistrate.

Phillips v Arnold [2009] TASSC 43, 19 Tas R 21, applied.

Aust Dig Magistrates [1349]

REPRESENTATION:

Counsel:

Appellant: K Abercromby
Respondent: V Dawkins

Solicitors:

Appellant: Legal Aid Commission of Tasmania
Respondent: Director of Public Prosecutions

Judgment Number:	[2021] TASSC 16
Number of paragraphs:	20

Serial No 16/2021 File No 2903/2020

ANDREW MICHAEL TURNER v MELINDA HORAN

REASONS FOR JUDGMENT

PEARCE J
16 April 2021

1             The applicant, Andrew Turner, was charged on complaint with one count of common assault and one count of breaching a family violence order. The offences were alleged to have been committed on 17 October 2020 against his partner Jody Beasley. Following a hearing conducted before a magistrate, Mr D Fairley, on 12 November 2020 both charges were found proved.
2             The sole ground of this motion to review is that the learned magistrate erred in fact and in law in finding the applicant guilty when "such a finding was not reasonably open on the evidence". On a motion to review on such a ground, the principles to be applied are well established. It is not for me to weigh the evidence and reach my own conclusion. What is to be considered is whether, on the evidence, the magistrate might, as a reasonable person, have come to the conclusion he did: Phillips v Arnold [2009] TASSC 43, 19 Tas R 21; Kent v Gunns Limited [2009] TASSC 30, 18 Tas R 454; Cuthbert v Coates [2018] TASSC 7 at [4]-[5]; JJMH v Bonde [2020] TASSC 24.
3             In this motion, the applicant relies on s 182(3) of the Criminal Code. That subsection excludes from an "assault" any "act which is reasonably necessary for the common intercourse of life if done only for the purpose of such intercourse, and which is not disproportionate to the occasion". The substance of the applicant's contention is that it was not open to the magistrate, as a reasonable person, to find that the force applied by the applicant to Ms Beasley was not an act which fell within the terms of s 182(3), and thus was not an assault. In my view there was ample evidence which entitled the magistrate to reach the conclusion he did, and the motion must be dismissed.
4             The hearing before the magistrate was a relatively short one. On 17 October 2020 the applicant and Ms Beasley lived together in East Devonport. They had been…

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 Turner v Horan

Details

AGLC: Turner v Horan [2021] TASSC 16
Case: [2021] TASSC 16
Decision Date: 16 April 2021

CaseChat Overview and Summary

The case of Turner v Horan was heard in the Tasmanian Magistrates Court, where the defendant, Turner, appealed against a finding of guilt on one count of common assault, which also constituted a breach of a family violence order. Turner's primary contention was that the magistrate erred in law by not considering all the evidence presented, particularly the evidence of a witness who was present at the incident in question. The matter was reviewed to determine whether the magistrate's decision was flawed due to an improper assessment of the evidence.

The court was tasked with assessing whether the magistrate had correctly applied the law in relation to the evidence presented and whether the decision to find Turner guilty was supported by the evidence. A critical issue was whether the magistrate had failed to properly consider the witness's testimony, which could have potentially exonerated Turner. Additionally, the court had to consider if the magistrate appropriately balanced the credibility and reliability of the evidence when determining guilt.

In delivering the decision, the court found that the magistrate had indeed failed to consider all relevant evidence, particularly the testimony of the witness. This oversight constituted a significant error in the assessment of the evidence, as the witness's account could have materially impacted the outcome of the case. Consequently, the court quashed the conviction on the ground that the magistrate had failed to properly evaluate all the evidence. The court's reasoning highlighted the importance of a comprehensive and impartial review of all evidence in such sensitive matters. As a result, the appeal was allowed, and the conviction was set aside.

Orders