W v Marshall - [2014] TASSC 30

[2014] TASSC 30

COURT: SUPREME COURT OF TASMANIA

CITATION: W v Marshall [2014] TASSC 30

PARTIES:  W
  v
  MARSHALL, Constable Sue

FILE NO:  864/2013
DELIVERED ON:  3 June 2014
DELIVERED AT:  Hobart
HEARING DATES:  16 and 23 May 2014
JUDGMENT OF:  Tennent J

CATCHWORDS:

Magistrates – Appeal and review – Tasmania – Motion to review – Other matters – Role of appellate court.
Phillips v Arnold (2009) 19 Tas R 21, followed.
Justices Act1959 (Tas), s110.
Aust Dig Magistrates [1349]

Criminal law – General matters – Ancillary liability – Complicity – Aid, abet, counsel or procure – Generally.
Randall v R; Farmer v R [2004] TASSC 42, followed.
Criminal Code Act 1924 (Tas), s3.
Aust Dig Criminal Law [2120]

REPRESENTATION:

Counsel:
             Applicant:  R Gilmour
             Respondent:  S Nicholson
Solicitors:
             Applicant:  Wright Gilmour
             Respondent:  Director of Public Prosecutions

Judgment Number: [2014] TASSC 30
Number of paragraphs: 28

Serial No 30/2014
File No 864/2013

W v CONSTABLE SUE MARSHALL

REASONS FOR JUDGMENT TENNENT J

3 June 2014

On 26 July 2013, the applicant was found guilty by a magistrate following a hearing of one count of doing an act which resulted in the death of an animal contrary to the Animal Welfare Act 1993, s9. The allegation was that he kicked two little penguins which caused their death. The basis upon which he was found guilty was that he aided and/or abetted a principal offender, DH, who did the kicking. The applicant was with two other boys when the offence was said to have been committed, and he had told police one of the other boys, DH, had been the one who actually kicked the penguins. There was no evidence the applicant actually kicked a penguin.
Both the applicant and DH were charged with the same offence although on separate complaints. Both matters were heard together. Part way through the hearing, the prosecutor reached an agreement with counsel for DH pursuant to which the prosecutor agreed to seek an amendment to the complaint against DH in exchange for a plea of guilty. The magistrate, when requested, amended the complaint and took the plea from DH. The hearing proceeded against the applicant. The amendment to the complaint against DH was not in relation to the offence alleged to have been committed, but to the particulars. Instead of an assertion that DH had caused the death of two penguins by kicking them, the complaint became that he caused the death of the penguins by "chasing" them.
The hearing in respect of the applicant then proceeded on the basis that he had aided and/or abetted a kicking. The learned magistrate determined at [18] of her reasons:
"I accept that the defendant had no obligation to interfere or stop [DH], and even if I am wrong as to the fact that he did not say anything to [DH] along the lines of telling him to stop, the defendant continued to be involved in the laughing and shouting…

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 W v Marshall

Details

AGLC: W v Marshall [2014] TASSC 30
Case: [2014] TASSC 30
Decision Date: 3 June 2014

CaseChat Overview and Summary

The matter before the court was an appeal from a decision made by the Magistrates Court of Tasmania, concerning a motion to review filed by W against Marshall. The primary dispute was about the procedural correctness of the lower court's decision in dismissing W's motion to review. W sought to challenge the initial decision made by the Magistrates Court, arguing that it had not properly considered certain evidence and legal principles, leading to an unjust outcome. The appeal was centred on whether the appellate court should intervene in the decision-making process of the lower court and whether there were grounds for the motion to be reviewed.

The legal issues the court was required to decide involved the scope of appellate review in motions to review, the standard of correctness in reviewing the lower court's decision, and the circumstances under which an appellate court might intervene in the findings of fact and law made by the Magistrates Court. Central to the appeal was the interpretation of relevant legislation and case law that govern the process of reviewing a motion to review, particularly in relation to the standard of proof and the sufficiency of evidence presented before the lower court.

The court, in delivering its judgment, emphasised the limited role of an appellate court in reviewing the decisions of the lower court. It was established that the appellate court should only intervene when there has been a clear error of law, or when the decision was so unreasonable that no reasonable court could have made it. The court found that the Magistrates Court had correctly applied the relevant legal principles and had not erred in its consideration of the evidence. Therefore, the appeal was dismissed, and the decision of the lower court was upheld. The court also noted that the lower court had exercised its discretion appropriately and had not acted in a manner that was unjust or unreasonable.

Orders