Webster v White (No 2) - [1991] TASSC 80

Serial No 64/1991
List "A"

COURT: SUPREME COURT OF TASMANIA

CITATION: Webster v White (No 2) [1991] TASSC 80; A64/1991

PARTIES:  WEBSTER, Darren John
  v
  WHITE, Graham Ross

FILE NO/S:  LCA 110/1990
DELIVERED ON:  22 August 1991
JUDGMENT OF:  Zeeman J

Judgment Number: A64/1991
Number of paragraphs: 8

Serial No 64/1991
List "A"
File No LCA 110/1990

DARREN JOHN WEBSTER v GRAHAM ROSS WHITE (NO 2)

REASONS FOR JUDGMENT ZEEMAN J

22 August 1991

On 13 August 1991 I held that none of the grounds upon which the applicant sought to review his convictions had been made out (Serial No 58/1991). I have yet to hear argument upon the ground contained in the notice to review upon the basis of which it is sought to review the sentences imposed. Upon the matter coming before me for such argument, counsel for the applicant sought to proceed with an application filed on 22 February 1991 seeking an order pursuant to s111 of the Justices Act 1959 ("the Act") that the complaint be heard de novo. That application has not previously been determined. Although the way in which this matter has previously proceeded gave the impression that the application for a hearing de novo was not being proceeded with, it has never been abandoned. Whilst a valid notice to review is a prerequisite to the exercise of jurisdiction under s111 it is not a prerequisite for validity that any ground be made out. It is a prerequisite for validity that the notice to review set forth as a ground an allegation of the type referred to in s107(4) of the Act. There appears to be no impediment to my now determining that application. Counsel for the respondent did not seek to submit otherwise. I therefore proceed to determine that application.

The orders sought to be reviewed do not fall within s111(3), so that there is jurisdiction to make an order. The jurisdiction conferred by s111 is discretionary. By virtue of s111(4), an order may not be made unless I am satisfied that having regard to all the circumstances, the interests of justice require that the complaint be reheard de novo. The provisions of s111(5) specify particular circumstances in which an order may be made. None of those circumstances exist. The matters which I am to determine are:

1Whether I am satisfied that having regard to all the circumstances, the interests of justice require that the complaint be reheard de novo; and
2If I am so satisfied, whether the complaint should be reheard de novo.

The applicant has no prima facie entitlement to a hearing de novo (Mundy v Cole [1979] Tas R 311 (NC 14)), but must satisfy me that there ought to be an exercise of the discretion in his favour. Only one circumstance making it appropriate for me to exercise my discretion in the applicant's favour is suggested. It is that the applicant was deprived of a fair trial because an important witness for the defence…

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 (No 2)

Details

AGLC: Webster v White (No 2) [1991] TASSC 80
Case: [1991] TASSC 80
Decision Date: 22 August 1991

CaseChat Overview and Summary

In the Supreme Court of Tasmania, the case of Webster v White (No 2) involved the applicant, Darren John Webster, seeking to review his convictions and sentences imposed by a magistrate. The applicant argued that he was incompetently advised by his legal representatives, which led to an important witness not being called at the original hearing. The court was required to determine whether the applicant was entitled to a hearing de novo and if the interests of justice required such a rehearing.

The primary legal issue before the court was whether the applicant, Darren John Webster, was entitled to a hearing de novo under section 111 of the Justices Act 1959. The applicant argued that he was deprived of a fair trial due to incompetent legal advice that led to an important witness, Steven Cole, not being called. The court had to consider whether the failure to call this witness, and the resulting advice, warranted a rehearing of the complaint.

Zeeman J held that the applicant was not entitled to a rehearing de novo based on the mere fact that a witness was not called, as this did not constitute a miscarriage of justice. However, the court found that the incompetent advice given to the applicant about calling the witness Steven Cole constituted a significant error in the legal process. The court concluded that the interests of justice did require a rehearing de novo due to the erroneous advice, which potentially led to a grave injustice. The court quashed the orders of conviction and sentence and ordered that the complaint be reheard by another magistrate.

The final orders made by the court were that the orders of conviction and sentence made against the applicant be quashed and that the complaint be reheard de novo by another magistrate sitting at Launceston. The court directed that this rehearing should occur on a date to be fixed by the Clerk of Petty Sessions at Launceston.

Orders