Visser v W K S - [2001] TASSC 36

[2001] TASSC 36

CITATION: Visser v W K S [2001] TASSC 36

PARTIES:  VISSER, Claas
  v
  W K S

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  APPELLATE
FILE NO/S:  LCA 25/2000
DELIVERED ON:  6 April 2001
DELIVERED AT:  Launceston
HEARING DATE/S:  23 March 2001
JUDGMENT OF:  Crawford J

CATCHWORDS:

Magistrates - Jurisdiction and procedure generally - Procedure - The hearing - Matters relating to decision - Obligation to state reasons for decision.

Briscoe v Turner Unreported 128/1997; Pettitt v Dunkley [1971] 1 NSWLR 376; Soulemezis v Dudley Holdings Pty Ltd (1987) 10 NSWLR 247, referred to.
Aust Dig Magistrates [128]

REPRESENTATION:

Counsel:
           Applicant:  L A Mason
           Respondent:  R L Holder
Solicitors:
           Applicant:  Direction of Public Prosecutions
           Respondent:  Archer Bushby

Judgment ID Number: [2001] TASSC 36
Number of paragraphs: 14

Serial No 36/2001
File No LCA 25/2000

CLAAS VISSER v W K S

REASONS FOR JUDGMENT CRAWFORD J
6 April 2001

The applicant was charged with three counts in a complaint. After a defended hearing, the third count was found proved. It charged the applicant with threatening two police officers in the execution of their duty by saying certain words. The first and second counts were found not to have been proved. They both charged assaults under the Criminal Code, s184, on Constable Piper by spitting saliva and blood at him, causing it to enter his eyes. The first assault was alleged to have taken place in or near a vacant block fronting onto Goulburn Street, George Town. The second assault was alleged to have taken place in a police vehicle, shortly after the first assault. Although the learned magistrate found that the respondent's blood and saliva did hit the constable on both occasions, his Worship was not satisfied beyond reasonable doubt that the respondent intentionally spat the blood or saliva at the officer.

The applicant sought to review the dismissal of counts 1 and 2 on four grounds. The third ground asserts that the learned magistrate erred in law when in the course of his reasons, he said that "the charges under s184 of the Code are offences of specific intent". It was submitted by the applicant's counsel that the crime of assault is not one of specific intent. Regardless of what label may correctly be put on it in that regard, it is plain that what the learned magistrate meant was that "an assault is the act of intentionally applying force to the person of another", to adopt the words of the definition of an assault in the Code, s182(1). If there was an error, on the part of the learned magistrate, in the words he used, I am satisfied that no miscarriage of justice resulted (see the Justices Act 1959, s110(2)(ab)), and that the motion to review cannot succeed on the third ground. Counsel for the applicant conceded that.

By ground 4, the applicant complained that the learned magistrate erred in law because he "failed to adequately state his findings and the reason for…

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 Visser v W K S

Details

AGLC: Visser v W K S [2001] TASSC 36
Case: [2001] TASSC 36
Decision Date: 6 April 2001

CaseChat Overview and Summary

Claas Visser sought a review of the decision of a magistrate to acquit him of two counts of assault on police officers. The third count, of threatening the officers, was upheld. The magistrate found that although blood and saliva from the respondent hit the police officers, there was a reasonable doubt that the spitting was intentional. The applicant argued that the magistrate erred in law by failing to adequately state his findings and reasons for his decision to acquit. The court held that the magistrate's reasons were detailed and he concluded that the respondent's evidence could not be relied upon, unless supported by other credible evidence. The magistrate found the defence witnesses to be confused, unhelpful or biased and rejected their evidence. The magistrate accepted the substance of the prosecution evidence but concluded that Constable Piper, the only witness to the assaults, did not have a clear recollection of the sequence of events and it was a reasonable possibility that he had reconstructed part of his recollection concerning the spitting. The court found that the magistrate's conclusion that he was left with a reasonable doubt was one that was reasonably open on the evidence and dismissed the motion for review.
The court also considered the applicant's argument that the magistrate erred in law by stating that the charges under s184 of the Criminal Code were offences of specific intent. The court held that the magistrate's error, if any, did not result in a miscarriage of justice. The court found that regardless of the label used, the magistrate meant that an assault is the act of intentionally applying force to the person of another, as defined in the Code. The court further found that the magistrate's reasons for acquitting the applicant were sufficient and did not err in law. The court dismissed the motion for review and upheld the magistrate's decision.

Orders