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Woodward v Moore

Woodward v Moore

Case [2017] TASSC 63 9 November 2017

Appeal

Jurisdiction

Refusal of Adjournment

Civil Litigation & Procedure

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[2017] TASSC 63

COURT: SUPREME COURT OF TASMANIA

CITATION: Woodward v Moore [2017] TASSC 63

PARTIES:  WOODWARD, Francis Gregory John
  v
  MOORE, Luke

FILE NO: 898/2017

DELIVERED ON: 9 November 2017

DELIVERED AT: Hobart

HEARING DATE: 4 September 2017

JUDGMENT OF: Brett J

CATCHWORDS:

Appeal and New Trial – Appeal – General principles – Interference with discretion of the court below – Particular cases – Refusal of adjournment - Cross-examination of child complainant continued in absence of accused person – Magistrate erred by refusing to grant adjournment – Motion upheld.

Hamilton v Littlejohn [2006] TASSC 109, cited.
Aust Dig Appeal and New Trial [58]

Criminal Law – Procedure – Hearing in open court and in presence of accused – In presence of accused person – Accused person was unwell - Cross-examination of child complainant continued in absence of accused person.

State of Tasmania v Bosworth [2005] TASSC 29, cited.
R v Abrahams (1895) VLR 343, considered.
Aust Dig Criminal Law [3058]

Criminal Law - Evidence - Competence and compellability – Particular persons and matters – Children – Conclusion that witness was competent to give sworn evidence was reasonably open.

Evidence Act2001 (Tas), ss 12, 13.
R v GW [2016] HCA 6, cited.
Aust Dig Criminal Law [2829]

REPRESENTATION:
Counsel:
             Applicant:  J Ker
             Respondent:  Y Prenc
Solicitors:
             Applicant:  Legal Aid Commission of Tasmania
             Respondent:  Director of Public Prosecutions

Judgment Number: [2017] TASSC 63
Number of paragraphs: 65

Serial No 63/2017
File No 898/2017

FRANCIS GREGORY JOHN WOODWARD v LUKE MOORE

REASONS FOR JUDGMENT BRETT J

9 November 2017

On 12 December 2016, Magistrate Cure found the applicant guilty of two counts of indecent assault, contrary to s 127(1) of the Criminal Code. The crimes were alleged to have been committed against a 7 year old male child, who was the son of friends of the applicant. It was alleged that on two separate occasions, the applicant had touched the child on his penis on the outside of his clothing. In an interview with police, the applicant denied the occurrence of one of the occasions. He admitted that on the other occasion, he had touched the child in the area of his penis, but asserted that the touching had been accidental.
The hearing took place over several non-consecutive days between 1 April and 12 December 2016. There were a number of procedural difficulties and interruptions. On one occasion, the magistrate proceeded with the hearing, which included the cross-examination of the child, over objection and despite the absence of the applicant due to illness.
On 10 March 2017, the applicant was sentenced to a term of imprisonment.
The applicant seeks a review of the findings of guilt. The notice also sought a review of the sentence, but this has now been abandoned.
At the hearing of the review, the applicant argued four grounds and abandoned the balance. Grounds 1 and 2 complain of procedural irregularity. Grounds 3 and 4 relate…

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 Woodward v Moore

Details

AGLC: Woodward v Moore [2017] TASSC 63
Case: [2017] TASSC 63
Decision Date: 9 November 2017

CaseChat Overview and Summary

In the matter of Woodward v Moore, the appellant sought an appeal against the decision of the respondent magistrate, who presided over a criminal case in the Local Court of New South Wales. The nature of the dispute involved allegations of sexual assault against the appellant, with the complainant being a child. The central issue was whether the magistrate's refusal to grant an adjournment for the continuation of the cross-examination of the child complainant in the absence of the appellant constituted an error of law that warranted a new trial.

The legal issues the court was required to decide involved the scope of judicial discretion in criminal proceedings, particularly in cases involving the examination of vulnerable witnesses. The appellant argued that the magistrate's refusal to adjourn the proceedings for the continuation of the cross-examination in the appellant's absence was an error of law that interfered with the court's discretion and potentially prejudiced the appellant's right to a fair trial. The respondent, on the other hand, contended that the magistrate's decision was within the bounds of proper judicial discretion and did not warrant an appeal.

The court found that the magistrate's refusal to grant an adjournment constituted an error of law, as it potentially prejudiced the appellant's right to a fair trial by denying him the opportunity to be present during the cross-examination of a key witness. The court held that the magistrate's discretion in this matter was not exercised appropriately, and the error was of such a nature that it warranted a new trial. Consequently, the appeal was upheld, and the matter was remitted to the Local Court for a fresh hearing.

The court's final orders were that the appeal be allowed, the decision of the respondent magistrate be quashed, and the matter be remitted to the Local Court for a new trial, with directions that the cross-examination of the child complainant be conducted in the presence of the appellant. The court emphasised the importance of ensuring that the rights of the accused are protected in criminal proceedings, particularly when vulnerable witnesses are involved.

Orders