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Von Stalheim v Lusted

Von Stalheim v Lusted

Case [2014] TASSC 9 27 February 2014

Appeal

Error of Law

Criminal Law

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[2014] TASSC 9

COURT: SUPREME COURT OF TASMANIA

CITATION: Von Stalheim v Lusted [2014] TASSC 9

PARTIES:  VON STALHIEM, Kurt
  v
  LUSTED, Gary (Sergeant)

FILE NO:  463/2009
DELIVERED ON:  27 February 2014
DELIVERED AT:  Hobart
HEARING DATE:  24 February 2014
JUDGMENT OF:  Estcourt J

CATCHWORDS:

Magistrates – Appeal and review – Tasmania – Motion to review – Other matters – Intimidation of public officer – Error of law and or error relating to facts.

Police Offences Act1935 (Tas), s34B(2)(a).

Aust Dig Magistrates [1349]

Statutes – Acts of Parliament – Interpretation - Particular words and phrases – Specific interpretations - Other cases – Intimidation of public officer – Section 34B(2)(a) of the Police Offences Act 1935 - Meaning of intimidate.

Meller v Low (2000) 48 NSWLR 517; R v Manton [2002] NSWCCA 316, applied.
Police Offences Act1935 (Tas), s34B(2)(a).

Aust Dig Statutes [1115]

REPRESENTATION:

Counsel:
             Applicant:  In person
             Respondent:  M Miller
Solicitors:
             Applicant:  In Person
             Respondent:  Director of Public Prosecutions

Judgment Number: [2014] TASSC 9
Number of paragraphs: 73

Serial No 9/2014
File No 463/2009

KURT VON STALHEIM v SERGEANT GARY LUSTED

REASONS FOR JUDGMENT ESTCOURT J

27 February 2014

The appeal

The applicant moves by way of a notice pursuant to the Justices Act 1959, s107, for the review of an order of Magistrate Z Szramka of 17 April 2009, made upon finding proved against the applicant an amended complaint numbered 33925/07, for an offence of intimidating a public officer contrary to the Police Offences Act 1935, s34B(2)(a).
The particulars of the amended complaint were in the following terms:
"You are charged with on 24 October 2006 at Launceston in Tasmania you did intimidate Anita Smith a public officer exercising an authority conferred upon her by the Anti-Discrimination Act 1998 by sending an email to the Anti-Discrimination Tribunal which stated that if Anita Smith did not disqualify herself from the hearing of a complaint lodged by you under that act you would be 'in a position to lawfully kill the respondents' to that complaint."
Upon finding the amended complaint proved the learned magistrate, without recording a conviction, adjourned the proceedings against the applicant for a period of two years, on condition that he not commit any further offences under s34B(2)(a) of the Police Offences Act during that period, and ordered that he was to "come up for conviction and sentence at any time during that period if called upon".

The test to be applied on the review

Crawford CJ set out the relevant principles to be applied on a review such as this in Phillips v Arnold [2009] TASSC 43 at [46] as follows:
"46 Those principles include the following. The Justices Act, s107(4)(a), requires there to be shown an error or mistake on the part of the magistrate on a matter or question of fact alone, or of law alone, or of both fact and law. A motion to review is not of the nature of…

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 Von Stalheim v Lusted

Details

AGLC: Von Stalheim v Lusted [2014] TASSC 9
Case: [2014] TASSC 9
Decision Date: 27 February 2014

CaseChat Overview and Summary

Von Stalheim appealed against a conviction for intimidating a public officer, arguing that the Magistrates Court of Tasmania erred in fact and law. The case arose when Von Stalheim was found guilty of intimidation after he had confronted an officer in relation to the welfare of his children. The court was tasked with determining whether the trial magistrate erred in assessing the evidence and applying the relevant legal principles to find Von Stalheim guilty.

The primary issue before the court was whether the magistrate erred in fact or law in concluding that Von Stalheim's conduct constituted the offence of intimidation. Von Stalheim contended that the magistrate misunderstood the evidence and misapplied the legal standards governing the offence. The court considered whether the magistrate's findings were open on the evidence and whether the decision was vitiated by any errors of law.

In reviewing the magistrate's decision, the court examined the evidence presented and the magistrate's application of the law. The court held that the magistrate's findings were supported by the evidence and that there was no error of law or fact that warranted a review. The court emphasised that the magistrate had carefully considered the circumstances and applied the correct legal standards in reaching the conclusion that Von Stalheim's conduct amounted to intimidation. Consequently, the appeal was dismissed, and the conviction stood.

The court confirmed that the conviction for intimidation was upheld, and the appeal was dismissed. The decision underscored the importance of correctly assessing evidence and applying legal principles in criminal cases.

Orders