Webster v White - [1991] TASSC 75

Serial No 58/1991
List "A"

COURT: SUPREME COURT OF TASMANIA

CITATION: Webster v White [1991] TASSC 75; A58/1991

PARTIES:  WEBSTER, Darren John
  v
  WHITE, Graham Ross

FILE NO/S:  LCA 110/1990
DELIVERED ON:  13 August 1991
JUDGMENT OF:  Zeeman J

Judgment Number: A58/1991
Number of paragraphs: 20

Serial No 58/1991
List "A"
File No LCA 110/1990

DARREN JOHN WEBSTER v GRAHAM ROSS WHITE

REASONS FOR JUDGMENT ZEEMAN J

13 August 1991

The applicant seeks to review his conviction by a magistrate on each of two charges of assault contrary to s35(1) of the Police Offences Act 1935. In the alternative he seeks to review the sentences imposed. The grounds upon which the review of the convictions is sought were amended on a number of occasions during the course of the hearing so that none of the original grounds now remain. The substance of the grounds as they presently stand is as follows:

1That the learned magistrate erred in law and/or in fact by proceeding to convict the applicant without having heard the evidence of one Steven Cole who was able to give relevant evidence.
2That the learned magistrate erred in law and/or in fact in that having heard evidence that it was claimed that the said Steven Cole and not the applicant had committed the relevant offences, he failed to enquire as to why Cole was not called as a witness, he failed to advise the applicant as to the desirability of Cole being called as a witness, he failed to issue a summons or a warrant to compel the attendance of Cole, and he proceeded to convict the applicant without first having heard evidence from Cole.
3That the learned magistrate erred in law and/or in fact in drawing an inference adverse to the applicant based upon the failure to call Steven Cole to give evidence.

The complaint charged the applicant with unlawfully assaulting one Jason Bolton by punching him to the face, and with unlawfully assaulting one Gregory Dawson by kicking him to the head, taking hold of him by the hair and hitting his head on the ground. Each of these offences was alleged to have occurred on 5 October 1990. It is appropriate to summarize the effect of the prosecution case as it was put before the learned magistrate. In the early hours of 5 October 1990, Bolton, an off duty police officer, was walking in Brisbane Street towards the Launceston Hotel when three male persons, one of whom was the applicant, emerged from the hotel and walked towards Bolton. One of the men bumped into Bolton. Bolton turned to ask why but was then punched in the face by the applicant. The incident was seen by police officers from the Licensing Branch, but the applicant managed to elude them. The officers went searching for the applicant. They entered Yorktown Square on two occasions for that purpose. On leaving Yorktown Square on the second occasion they proceeded to Cameron Street. In that street they observed the applicant on…

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 Webster v White

Details

AGLC: Webster v White [1991] TASSC 75
Case: [1991] TASSC 75
Decision Date: 13 August 1991

CaseChat Overview and Summary

The case of Webster v White concerns a challenge by the applicant, Darren John Webster, against his conviction by a magistrate on two counts of assault under the Police Offences Act 1935. The applicant seeks to review both his convictions and the sentences imposed. The primary grounds for review focus on the magistrate's alleged failure to hear evidence from Steven Cole, a potential witness who was not called by the applicant. The applicant argues that the magistrate should have made inquiries about the absence of Steven Cole and should not have convicted him without hearing Cole's testimony. The court examines whether the magistrate's failure to inquire and the drawing of an adverse inference constituted errors warranting a review of the convictions.

The court considered whether the magistrate's failure to call Steven Cole and the drawing of an adverse inference constituted an error or mistake within the meaning of the Justices Act. The applicant's counsel argued that the magistrate's failure amounted to an unwitting error, citing Queensland cases that suggest an error can be unwitting. However, the court disagreed, finding that any error or mistake must be identifiable from the materials before the magistrate. The court held that since the magistrate was not privy to the reasons for not calling Steven Cole, any error or mistake could not be determined from the materials before him. Therefore, the first ground for review was deemed invalid.

Regarding the second ground, the court examined whether the magistrate should have made further inquiries into the absence of Steven Cole, particularly given the inexperience of the applicant's counsel. The court concluded that while the magistrate should have directed counsel's attention to the significance of not calling Steven Cole, there was no obligation to make further inquiries. The court held that the magistrate did not err in convicting the applicant without hearing Steven Cole's evidence.

Lastly, the court addressed the ground concerning the adverse inference drawn by the magistrate due to the failure to call Steven Cole. The court found that the magistrate erred in drawing such an inference, as there was an explanation for not calling Steven Cole, including the potential incriminating nature of his testimony. However, the court concluded that this error was irrelevant to the magistrate's ultimate finding of guilt, as he was satisfied beyond reasonable doubt of the applicant's guilt without considering the adverse inference.

Ultimately, the court dismissed the appeal against the convictions, finding no grounds to interfere with the magistrate's decision. The court did not address the sentences at the time of the judgment, indicating that argument on this matter would be heard at a later date.

Orders