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[2009] TASSC 90
appellant. Conviction and sentence quashed; order for retrial before another magistrate (para 19).
The Supreme Court quashed Brown's conviction for common assault because the magistrate said he was satisfied the assault occurred 'in the manner set out in the complaint' while the evidence did not support several specific particulars alleged after the taxi incident, and because the magistrate improperly discounted defence witnesses as colluding without evidence. The Court found the core prosecution evidence was nevertheless sufficient to allow a retrial and ordered Brown be retried before another magistrate.
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1,671 words · generated 08/07/2026
Johnny Reginald Brown was tried in the Magistrates Court on a charge of common assault contrary to s 35(1) of the Police Offences Act 1935 (Tas). The particulars alleged a sequence of punches delivered while Brown sat in the rear of a taxi and further specific blows after he and the complainant, taxi driver Junisa Bangura, exited the vehicle (see the full particulars quoted in para 1). At trial the learned magistrate accepted, largely, the evidence of the complainant and a fellow taxi driver, Kerry Leniham, and rejected parts of the defence account. The magistrate concluded orally that he was "satisfied beyond all reasonable doubt that the defendant (sic) was assaulted in the manner set out in the complaint" (para 3). The magistrate also discounted two female defence witnesses, suggesting they had discussed the events and were "close friends", an inference of collusion which the transcript showed had no evidential basis (para 3, see further para 7).
No linked legislation citations have been extracted yet.
On review in the Supreme Court of Tasmania Evans J found that the magistrate's final sentence, properly read, referred to the particulars of the complaint (para 6). The Court held that particulars alleging specific punches after the parties left the taxi were not supported by detailed evidence; the available testimony about post‑taxi blows was generalised and did not match the particulars (para 6). Evans J also concluded the magistrate had no evidential foundation for discounting defence witnesses as collusive (ground 2 established) (paras 5-8). The Supreme Court quashed the conviction and sentence but ordered a retrial because the prosecution evidence of assault (Bangura and Leniham) was sufficient to support a finding within the complaint's parameters and no contention was advanced that a retrial would be unjust (paras 17-19).
The Court's analysis proceeded in two linked strands.
First, Evans J focused on the relationship between the magistrate's concluding statement and the particulars of the complaint. The magistrate stated he was satisfied the assault occurred "in the manner set out in the complaint" (para 3). The particulars were the only part of the complaint describing the precise manner of the alleged assault; consequently the Court read that concluding sentence as accepting the particulars (para 6). The Court examined whether the evidence supported those particulars. It found that the evidence describing the post‑taxi part of the alleged assault was generalised and lacked the particularised blows alleged (para 6). The transcript also revealed the magistrate himself had acknowledged possible evidential deficiency for the "second bit" of the assault during the examination of a defence witness (para 7). These factors led the Court to conclude the magistrate's satisfaction as to the particulars could not reasonably be sustained.
Second, the Court addressed the magistrate's adverse treatment of defence witnesses. The magistrate had said it "defie[d] human nature" that the female witnesses had not discussed the matter, discounted their evidence because they were "close friends" of each other and of Brown, and treated Leniham as an "independent witness" (para 3). The Supreme Court found no evidence to support the assertion of collusion, and noted the witnesses were never cross‑examined on that topic (para 7). The Court treated that unsupported inference as an error of law that undermined the conviction (paras 5-8).
Having identified those legal errors, Evans J turned to disposition. He considered the established authorities on when a retrial should be refused, principally where evidence at trial is insufficient to justify a conviction, and concluded that the evidence of Bangura and Leniham, despite inconsistencies and contradictions, was sufficient to support a finding of assault within the complaint's parameters (paras 9, 10-11, 17). No argument was advanced that a retrial would be unjust; accordingly the Court ordered a retrial before another magistrate (paras 18-19).
Before Brown, the principles governing when to order a retrial were well established: retrial should not be ordered where the evidence at the trial was insufficient to support conviction (cases cited at para 9: Reid v R; Andrews v R; Gerakiteys v R). The Court in Brown applied those principles to a factual situation where the trial judge's reasons went beyond the evidence.
After Brown, the reaffirmed position is twofold: (1) the appellate or supervisory court will quash a conviction where the trial tribunal's expressed satisfaction cannot be reconciled with the evidence, particularly where particulars are not supported; and (2) where the evidence is nevertheless sufficient to sustain a charge, a retrial will ordinarily be ordered unless it would be unjust to do so (paras 9, 17-19). Brown applies those principles at the magistrates' court level and emphasises careful parsing of a tribunal's concluding language against the pleaded particulars.
Selected passages from the reasons (with plain-English translation):
Magistrate's concluding statement (quoted at para 3): "I am satisfied beyond all reasonable doubt that the defendant (sic) was assaulted in the manner set out in the complaint."
Evans J's reconstruction (paras 6‑7): the Court reads that closing sentence as referring to the complaint's particulars, and then observes there was "simply no evidence consistent with the particulars" concerning post‑taxi punches.
On collusion (para 3 and para 7): the magistrate discounted female defence witnesses as having discussed events; the Supreme Court found there was no evidence to support that inference and no cross‑examination on the point.
Disposition (para 19): "I order that the conviction and sentence of the defendant be quashed and that he be retried before another magistrate."
Brown will be directly relevant where:
This decision is an application of well established principles about sufficiency of evidence for retrial (citing Reid, Andrews, Gerakiteys, para 9) and follows local authority on unjust retrial refusal (Burston v Brooks, para 18). Brown itself is an exemplification rather than a novel rule; later courts considering similar fact‑based complaints will likely follow its approach: read the tribunal's conclusions against the particulars and the evidence; identify any unsupported adverse inferences drawn by the tribunal; and then determine whether the remaining evidence suffices to justify retrial. Brown is most useful as a practical guide at the supervisory review stage for separating legitimate appellate intervention from cases where inconsistencies go to weight rather than sufficiency (para 17).
Note: Brown referred to Burston v Brooks as a Tasmanian authority it followed (para 18), and cited interstate authorities (Klemenko; Davey) as illustrating when retrial might be unjust. Those references show the Court situates Brown within the established discretion to refuse retrial where justice requires it.
Brown resolves several issues but leaves or highlights some areas for attention:
Degree of particularity required in the magistrate's reasons: Brown reads a general concluding phrase as encompassing particulars. The decision underscores the risk for trial tribunals in giving broad concluding statements. It does not, however, fix a particular standard of phrasing; future cases may have to decide when linguistic nuance permits a narrower reading of a tribunal's final expression of satisfaction (cf paras 3, 6).
When can inconsistencies be treated as weight rather than sufficiency: Brown shows inconsistencies (eg seating position) do not, of themselves, render evidence insufficient (para 17). The boundary remains fact‑sensitive; further appellate guidance may be needed on thresholds for sufficiency versus mere credibility disputes.
Appropriate treatment of witness independence: Brown criticised the magistrate's description of Leniham as an "independent witness" when he was a supervisor of the complainant (para 8). Brown signals appellate courts will scrutinise characterisations of independence, but does not set a rule for how much supervisory relationship diminishes probative force; that remains for later factual applications.
Retrial injustice: Brown ordered a retrial since no injustice was shown and evidence supported the charge (para 18). The decision does not exhaustively catalogue circumstances that would render retrial unjust; references to Burston, Klemenko and Davey indicate principles exist but application will be case specific.
Practical takeaway for practitioners: on review, precise reading of (a) the tribunal's language, (b) the pleaded particulars, and (c) the actual evidentiary detail is crucial. If a magistrate's reasons overreach the evidence or rest on unsupported inferences (for example, unexplained assumptions of collusion), the conviction may be quashed even where primary prosecution testimony is strong enough to permit a retrial. Counsel seeking review should identify mismatches between particulars and evidence and any unsubstantiated credibility findings; respondents seeking a retrial should be ready to show that, despite errors, the evidence remains sufficient to sustain the charge and that retrying would not be unjust (paras 6-19).
CITATION: Brown v Department of Police and Emergency Management [2009] TASSC 90
Magistrates - Appeals and review - Tasmania - Motion to review - The hearing - Practice on and after hearing - Error of law established - Whether the complaint should be re-heard.
Reid v R [1980] AC 343; Andrews v R [1968] HCA 84; (1968) 126 CLR 198; Gerakiteys v R [1984] HCA 8; (1984) 153 CLR 317; Burston v Brooks, Tasmanian unreported decision, A91/1996, followed.
Judgment Number: [2009] TASSC 90
JOHNNY REGINALD BROWN v DEPARTMENT OF POLICE AND EMERGENCY MANAGEMENT
1 The applicant, Johnny Brown, applies for a review of his conviction on a charge of common assault in breach of the Police Offences Act 1935, s35(1). The particulars of the charge are:
"You are charged with on the 18th May, 2008 at Hobart in Tasmania, unlawfully assaulting Junisa BANGURA by while sitting in the rear of his taxi you punched him to the back of the head on two occasions with your right fist and then once to the right eye. You then exited the taxi and approached him as he got out of the vehicle before punching him to the right eye a second time, punching him to the back of his head, punching him to the ribs on his right side and then punching him to the left eye."
2 The applicant was the defendant in the proceedings that are the subject of this review and he is referred to in the transcript as the defendant. In these reasons I will also refer to him as the defendant.
3 At the conclusion of the evidence, the learned magistrate gave the following oral reasons for convicting the defendant:
"Well basically I've heard five different - four different versions of where the defendant was sitting in the car, which just shows you that different perceptions and time can affect people's memories. I've heard that he was sitting at the - immediately behind the driver, I've heard that he was sitting in the front and I've heard that he was sitting in the left hand rear passenger's side, but I think that's just an example of how different people can see different things and people's memories change.
It's up to the prosecution to prove their case. Of course it's trite law to say that it's up to the prosecution to prove their case beyond all reasonable doubt. That doesn't require a weighing up of witnesses, one side's got - if I can put it in terms of size, got five witnesses therefore they must win, compared to the other side's two witnesses, it's a question of weighing up the quality of the witnesses and in this case I think the most reliable witness is that of Mr Kerry Bresneham (sic). He's an independent witness, he has no axe to grind. I don't accept the suggestion that there hasn't been some discussion between the two female witnesses and Mr Brown as to the circumstances of this accident, it just defies human nature that they haven't talked about it for some time since, and they're close friends so their evidence has to be discounted to that extent.
But if I look at the evidence of Mr Kerry Bresneham (sic), which I accept - I'm sorry, I think I said Bresneham, it's Leniham, which I accept in its entirety. He was parked immediately - except I'll make one reservation - I'm not sure that he was correct as to where the defendant was seated, I think the defendant was seated in the back rear seat, but I don't think it's important to the matter anyway. Mr Leniham said he was immediately behind the vehicle, he had an elevated view, he could clearly see the driver of that taxi being struck twice and he - sorry, he didn't say that, he said he could clearly remember the punches being thrown and - by the defendant and the defendant going around to the driver's side and then the fight continuing.
I accept the evidence of the driver - or the complainant to the extent that I accept that there was an argument about the deposit, that he was stuck twice, at least twice in the taxi, and then he got out and the - Mr Brown went around and then struck him several times before - before they fell to the ground.
4 Counsel for the respondent does not challenge the accuracy of the particulars of the grounds in the notice to review and does not submit that the notice to review should be dismissed.
"1 That the learned magistrate erred in law in holding that, upon the whole of the evidence, the complaint was proved beyond a reasonable doubt.
b The learned magistrate found the particular that the defendant punched the complainant to the right eye a second time when there was no evidence of a second punch to the right eye
c The learned magistrate found the particular that the defendant punched the complainant to the back of the head at a time subsequent to leaving the taxi when there was no evidence of such a punch to the back of the head
d The learned magistrate found the particular that the defendant punched the complainant to the ribs on his right side a second time subsequent to leaving the taxi when there was no evidence of a punch to the ribs
e The learned magistrate found the particular that the defendant punched the complainant to the left eye at a time subsequent to leaving the taxi when there was no evidence of such a punch to the left eye.
f The learned magistrate accepted the evidence of the witness Kerry John Leniham although the learned magistrate found the [sic] Kerry John Leniham was wrong about where the defendant was seated in the taxi and although he gave evidence in part contrary to the complaint and in part consistent with the defence case.
g The learned magistrate found the complaint proved on the basis of the evidence of the witness Kerry John Leniham although the said Kerry John Leniham gave no evidence of any punches being thrown by the defendant which struck the complainant as described in the complaint.
h The learned magistrate found the complaint proved although the medical evidence was inconsistent with the evidence of the complainant
2 That the learned magistrate erred in law in finding that evidence given by witnesses called for the defence should be discounted on the basis that they colluded in giving their evidence.
a The witnesses Ruth Tafeta Bain and Jarma Faye Bradford where [sic] not cross examined on the basis that they had colluded in giving their evidence.
b There was no evidence that the witnesses called by the defence had colluded."
6 In the last sentence of his reasons for conviction the learned magistrate said, "I am satisfied beyond reasonable doubt that the defendant [sic] was assaulted in the manner set out in the complaint." Particulars b to e of ground 1 of the notice to review are drawn on the basis that this last sentence means that his Honour was satisfied beyond reasonable doubt that the complainant was "assaulted in the manner set out in the [particulars of the] complaint". Counsel for the respondent accepts that this is what his Honour meant. As the particulars to the complaint are the only part of the complaint that deals with the manner in which the complainant was assaulted, I am unable to give the sentence a different meaning. Had there been a reasonable basis for reading the sentence down, I would have been inclined to adopt it, as it is difficult to understand how his Honour could have been satisfied that the complainant was assaulted in the manner set out in the particulars to the complaint as:
•
The only evidence as to punches being thrown after the complainant and the defendant left the vehicle was generalised evidence to that effect from the complainant and Mr Leniham, and their evidence did not include any details of the punches, apart from evidence from the complainant that he was punched up to three times. There was simply no evidence consistent with the particulars that after the defendant exited the vehicle, his behaviour towards the complainant involved: "punching him to the right eye a second time, punching him to the back of his head, punching him to the ribs on his right side and then punching him to the left eye".
• The following exchange suggests that his Honour was made aware of the deficiencies in the evidence as to what occurred in the second part of the alleged assault that took place after the defendant and the complainant exited the cab. This exchange took place during the evidence of the last witness called by the defendant, Jarma Bradford, just before the learned magistrate gave his reasons for decision. The transcript of the exchange is:
"HIS HONOUR: Look, I'm just going to remind you that the charge is punching him to the back of his head and punching him to the ribs on his right side and punching him to the left eye. In other words we're dealing with the assault that occurred in the taxi. That's what I've been trying - been telling everyone that really -
MS SUNDRAM: (indistinct words), your Honour.
HIS HONOUR: Well sorry, no, I'm actually wrong.
MS SUNDRAM: Yeah, and then I see -
HIS HONOUR: He punched him to the back of the head on two occasions with the right first and then come round - yeah, okay.
MS SUNDRAM: Coming out of the taxi and continuing the assault -
HIS HONOUR: Well of course you've got no evidence as to the second bit really except - oh you might have evidence, okay, go on.
MS SUNDRAM (Resuming): Well see, this is what I'm getting to, that you didn't actually see the assault outside a taxi, you - fully, you saw - your eyes were diverted by another taxi pulling up?......Well it was diverted by the taxi driver getting out of the taxi and running over, but it was still in my range, I guess.
No further questions, your Honour.
"HIS HONOUR: Have you discussed this with Johnny afterwards, have you?
WITNESS: No, I haven't talked to Johnny about it at all, I talked -
HIS HONOUR: Well I'm just wondering why you - why you say that you - you - that he was pushing away for a particular reason?
WITNESS: Because I figured -
HIS HONOUR: Well we can't read people's minds, can we?
WITNESS: No.
HIS HONOUR: No. Okay, go on."
The defendant and Ms Bain were at no time asked whether there had been any discussion between them or with Ms Bradford about what had occurred. Insofar as Ms Bradford said in response to the learned magistrate's question: "No, I haven't talked to Johnny about it at all, I talked - ", before being cut off by his Honour, it may be that she was going to volunteer that she had talked about the matter to Ruth Bain. Whatever Ms Bradford's answer would have been had she completed it, save for her evidence that she had not talked to Johnny about it at all, there was no basis in the evidence for what his Honour referred to as "the suggestion that there hasn't been some discussion between the two female witnesses and Mr Brown", and the conclusion that his Honour reached, having raised and rejected that suggestion.
8 I am satisfied that particulars b to e of ground 1 have been established, as has ground 2, in the manner that I have explained. I will accordingly quash the defendant's conviction and the sentence imposed upon him. I should say that in taking this course, I am also influenced by the learned magistrate's erroneous statement that Kerry Leniham was "an independent witness, [and] has no axe to grind". Mr Leniham and the complainant, Junisa Bangura, were both Yellow Cab taxi drivers and Mr Leniham was Mr Bangura's supervisor. Whilst the evidence of this connection between them does not, of itself, provide any basis for rejecting the evidence of Mr Leniham, it does show that it was an error for the learned magistrate to say that Mr Leniham was an independent witness.
9 What is in contention before me is the order, if any, that I should make besides allowing the notice to review and quashing the conviction and sentence. Counsel for the respondent submits that I should order the retrial of the defendant. Counsel for the defendant submits that there should be no such order. The most common reason for refusing to order a retrial is that the evidence called on the trial was insufficient to support a finding that the complaint had been proved; Reid v R [1980] AC 343 at 349, Andrews v R [1968] HCA 84; (1968) 126 CLR 198 at 211, and Gerakiteys v R [1984] HCA 8; (1984) 153 CLR 317 at 322 and 331.
10 The key evidence in support of the complaint was given by Mr Bangura and Mr Leniham. Mr Bangura gave evidence that the incident occurred in the early hours of the morning of 18 May 2008 when his taxi was parked opposite Isobar. A man, subsequently identified as the defendant, and a woman, subsequently identified as Ruth Bain, got into the back seat of his taxi. The defendant sat directly behind Mr Bangura on the driver's side of the back seat, and Ms Bain sat towards the passenger side of that seat. The defendant asked to be taken to Lauderdale and Mr Bangura said he would not take them to Lauderdale without a deposit. In response, the defendant said, "You black shit", and punched Mr Bangura in the middle of the back of his neck. Mr Bangura turned around and the defendant punched him in the eye with his right fist. Mr Bangura said he was punched three times, that is, to the neck, eye and head. Mr Bangura did not see the blow to the back of his neck, but saw the defendant punch him twice with his right fist. As the defendant was punching Mr Bangura, Ms Bain was telling him to stop. To get away from the defendant, Mr Bangura got out of his taxi and stood by its open door. The defendant got out of the taxi and attacked Mr Bangura where he stood near the taxi door, punching him up to three times. Mr Bangura does not know with which hand the defendant punched him. He tried to resist the defendant, did not attack him, but pushed back at him and they fell to the ground and were quickly separated.
11 Kerry Leniham said that prior to the incident he was in his Tarago maxi cab, parked immediately behind Mr Bangura's cab in a queue of cabs. Mr Leniham was sitting in the driver's seat of his cab. It was broad daylight and from his elevated position in his maxi cab he had a good view through the back window of Mr Bangura's cab. He saw a man and a woman get into Mr Bangura's cab. The male was in the front passenger seat and the female was in the rear seat. After a moment Mr Leniham saw the male passenger attacking Mr Bangura by hitting him. The male then got out of the cab and went around to Mr Bangura's door and opened it. As the male and Mr Bangura were standing inside the open driver's door to the cab, the male kept punching Mr Bangura who was trying to defend himself. Mr Leniham got out of his cab, announced that he would phone the police, and did so. He did not see anyone besides the male passenger throw punches. After the male passenger and Mr Bangura were separated, Mr Leniham followed the male passenger and kept him in sight until the police arrived.
12 Constable Alexander Bond gave evidence that he received a call to attend at Mures Fish Bar at Constitution Dock and when he arrived there, Mr Leniham pointed out the defendant as the person who had assaulted another taxi driver. Constable Bond spoke to the defendant and noted that he had dried blood on his knuckles. The defendant told Constable Bond that he had been involved in a fight with a taxi driver and provided no further details.
13 Dr David Alcock, a resident medical officer at the Royal Hobart Hospital, gave evidence that at 8.55am on the morning of the incident, he examined the complainant at the hospital and the complainant complained of a sore neck in consequence of an assault that involved being punched in the back of the neck and in the face. Dr Alcock noted that the complainant had restricted neck movement due to pain and that upon palpation his neck was tender.
14 The defendant gave evidence, in the course of which he denied punching the complainant at any time. He said that he and his friend, Ruth Bain, got into the rear seat of the complainant's cab. The defendant sat on the left hand side of the rear seat and Ms Bain sat in the right hand side of that seat behind the driver. The defendant gave the complainant the address he wished to go to in Clarendon Vale and the complainant required a deposit. This annoyed the defendant who leant over and showed the complainant his wallet and money in it. The defendant queried why he needed to pay a deposit just because he lived in Clarendon Vale. The defendant acknowledged racially abusing the complainant by calling him "a black arsehole" and "black cunt". The defendant said the complainant shouted at him and Ms Bain to get out of the cab, which they did. The defendant went to the driver's door of the cab and said, "I will kick your cab in". When giving evidence, he explained that he did this because he was drunk and angry. He said that the complainant then got out of the cab, walked towards him and said, "You needn't kick my cab". The defendant then pushed the complainant away but the complainant tackled him to the ground where they scuffled for some seconds. The defendant acknowledged that when spoken to by a police officer at Mures, he had shown the officer his hands and told him he had been in a fight.
15 Ruth Bain gave evidence which substantially supported that of the defendant, save that she said that the complainant got out of the taxi before the defendant.
16 Jarma Bradford gave evidence that she had been with the defendant and Ruth Bain before they got into the cab. She was sitting on the other side of the roadway and after they had got into the cab she heard the cab driver shouting, "get out of the cab", saw Ruth Bain get out of the cab's rear driver's side door and saw the defendant get out of the cab's rear door on the other side. She saw the defendant walk to the complainant who got in the defendant's face and was pushed away. The defendant did not punch the complainant.
17 In the light of the evidence of Mr Bangura and Mr Leniham, it cannot be said that the evidence on the trial was insufficient to support a finding that the defendant had assaulted Mr Bangura. It is of no consequence that their evidence is contradicted by other evidence and that there are inconsistencies in the evidence such as the three different versions given of where the defendant was sitting in the cab (the learned magistrate was in error when he said there were four different versions of this). It is not open to me to decline to order a retrial on the basis that there was insufficient evidence on the trial to support a finding of assault against the defendant within the parameters of the complaint.
18 Another basis upon which it could be inappropriate to order a retrial is that in the circumstances of the case it would be unjust to do so. This was held to be the so in Burston v Brooks, Tasmanian unreported decision, A91/1996, at 8. Other cases there referred to which illustrate this approach are Klemenko v Huffa (1978) 17 SASR 549, Davey v Liebelt (1960) SASR 1. It has not been put to me that in the circumstances of this case it would be unjust to retry the defendant, and I cannot bring to mind any reason for so concluding.
19 I order that the conviction and sentence of the defendant be quashed and that he be retried before another magistrate.
Brown
Department of Police and Emergency Management [2009] TASSC 90
(1968) 126 CLR 198
(1984) 153 CLR 317
(1978) 17 SASR 549
Conviction and sentence quashed; order for retrial before another magistrate (para 19).
In assessing the credibility of the witnesses it take into account that Mr Brown was upset, as indicated by the fact that the threatened to kick the taxi in, that he also racially vilified the complainant and that he had been drinking and that in that state he was - it's logical to assume and to accept that he became angry and attacked the complainant, and so I think that the state of the defendant is consistent with the events occurring in the way described by Mr Leniham, the independent witness, and by the defendant. I'm satisfied beyond all reasonable doubt that the defendant (sic) was assaulted in the manner set out in the complaint."