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APPLICANT ALLEGES PROCEDURAL UNFAIRNESS WHEN HE WAS NOT GIVEN AN OPPORTUNITY TO GIVE HIS EVIDENCE IN-CHIEF

Hefny v Barnes [2021] TASSC 4 (19 February 2021)

This involves an unrepresented applicant alleging that conduct of the Magistrate results in procedural unfairness when he was not given an opportunity to present his evidence in chief.

Facts:

This is a motion for the review of a determination by a magistrate, Mr R Marron, by which he found that two charges against the applicant, Mohamed Hefny, were proven. Both charges related to an incident on 24 March 2018. The first alleged that the applicant assaulted a man named Richard Lloyd by grabbing his arms and pushing him, by grabbing his arms again, by punching him twice, and by pushing him again. The second charge alleged that the applicant resisted two police officers in the execution of their duty by struggling with them and refusing to place his arms behind his back to be handcuffed. The applicant has filed a notice to review which contains grounds in which he asserts that the learned magistrate denied him procedural fairness in several respects, and that he was obliged to disqualify himself on the basis of apprehended bias.

Mr. Hefny alleged that the learned Magistrate erred in law in not affording the applicant an opportunity to give his own evidence in chief and/or the applicant was not given procedural fairness as he was not given an opportunity to give his own evidence in chief.

When the applicant gave his evidence-in-chief, the learned magistrate did not ever give him an open invitation to say whatever he wanted to say. Instead, he asked him a series of questions, inviting him to outline the events of the day in question from beginning to end.

Issue: Was the conduct of the magistrate amounts to procedural unfairness?

Held:

The applicant was questioned by the magistrate as if the proceeding was an inquisitorial one, rather than an adversarial one. The nature of the questioning had a substantial practical advantage, in that it enabled the magistrate to hear a detailed and thorough account of the relevant events. There was no risk of the applicant's account being jumbled, incomplete or confused.

His defence to the assault charge was that he did not use force against Mr Lloyd in any of the ways alleged, or at all. As to the charge of resisting police, he conceded that he was told that he was under arrest, but contended that he had not committed an assault, that he was not told why he was being arrested, and that he did not resist in any way. Although the magistrate controlled the presentation of his case by asking questions, that did not prevent him from giving a detailed, thorough and unrestricted account of the events relating to his encounters with Mr Lloyd and the police officers. The way in which the magistrate conducted the case did not hinder him in advancing his defence to the charges in any.

Conclusion: Court hereby declares that there is no procedural unfairness committed by the Magistrate.

 

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