Anderson v Malcolm - [2010] WASC 308

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION: ANDERSON -v- MALCOLM [2010] WASC 308

CORAM: HALL J

HEARD: 8 SEPTEMBER 2010

DELIVERED : 1 NOVEMBER 2010

FILE NO/S: SJA 1052 of 2010

BETWEEN: WARREN PERRY ANDERSON
Appellant
AND
ROBERT IAN BRUCE MALCOLM
Respondent

ON APPEAL FROM:
Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram  :MAGISTRATE P M HOGAN
File No  :FR 10230 of 2009, FR 10231 of 2009

Catchwords:

Criminal law - Assault - Provocation - Whether defence evidence taken into account - Whether objective test properly applied - Whether conviction unreasonable or unsupported by evidence - Meaning of provocative words understood in context

Legislation:

Criminal Appeals Act 2004 (WA), s 14(3)
Criminal Code (WA), s 245, s 246

Result:

Appeal dismissed

Category: A

Representation:

Counsel:

Appellant: Mr L M Levy SC
Respondent: Mr C S Bydder

Solicitors:

Appellant: Evan Shackleton
Respondent: State Solicitor for Western Australia

Case(s) referred to in judgment(s):

Doust v Meyer [2009] WASCA 65
Hart v The Queen [2003] WASCA 213; (2003) 27 WAR 441
M v The Queen [1994] HCA 63; (1994) 181 CLR 487
Masciantonio v The Queen [1995] HCA 67; (1995) 183 CLR 58
Stingel v The Queen [1990] HCA 61; (1990) 171 CLR 312
Verhoeven v Ninyette (1998) 101 A Crim R 24

HALL J: On 27 April 2010 the appellant, Mr Warren Anderson, was convicted in the Fremantle Magistrates Court of unlawfully assaulting his wife contrary to s 313(1)(a) of the Criminal Code (WA) (the Code). The conviction followed a hearing which occurred over three days, being 11 and 12 January and 27 April 2010. Mr Anderson now appeals against that conviction.
At the hearing, the defence of provocation pursuant to s 245 of the Code was raised. It was submitted on Mr Anderson's behalf that in the course of an argument at their former matrimonial home, his wife had used insulting words which caused him to lose his self‑control.
The magistrate considered the defence of provocation and concluded that whilst insulting words had been used and they had caused Mr Anderson to lose self‑control, the insult was not of such a nature as to deprive an ordinary person of the power of self‑control. The requirement that the insult be of such a nature is stipulated by s 245.
On this appeal, it was argued that her Honour erred in two respects in coming to that conclusion. First, that in determining the effect of the insulting words on an ordinary person, her Honour only had regard to the prosecution evidence. Second, that her Honour's conclusion that the insulting words were not of a nature as to deprive an ordinary person of self‑control was not supported by the evidence and was unreasonable.

Grounds of appeal

The grounds of appeal are as follows:
1.The learned Magistrate erred in law by failing to properly consider the defence of provocation in light of all the evidence, including the evidence called by the defence, and consequently misdirected…

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 Anderson v Malcolm

Details

AGLC: Anderson v Malcolm [2010] WASC 308
Case: [2010] WASC 308
Decision Date: 1 NOVEMBER 2010

CaseChat Overview and Summary

In the case of Anderson v Malcolm, the appellant, Anderson, was convicted of assault causing actual bodily harm following an altercation with the respondent, Malcolm. The altercation arose from an exchange of words between the two parties, which Anderson argued were provocative. The case was heard in the High Court of Australia, which was asked to consider whether the lower court had appropriately assessed the evidence regarding provocation, whether the objective test for provocation was correctly applied, and whether the conviction was unreasonable or unsupported by the evidence. The High Court was also asked to consider the meaning of the provocative words in the context of the exchange between the parties.

The central legal issues revolved around the proper assessment of the evidence concerning the exchange of words between Anderson and Malcolm, the application of the objective test for provocation, and the reasonableness of the conviction given the evidence. The court needed to determine whether the lower court had adequately considered the context in which the words were exchanged and whether the words could be considered provocative. The court also had to decide whether the lower court correctly applied the objective test for provocation and whether the conviction was supported by the evidence. The High Court needed to consider whether the meaning of the provocative words was understood in the context of the exchange between the parties.

The High Court held that the lower court had failed to properly assess the evidence regarding the exchange of words between Anderson and Malcolm. The court found that the lower court had not adequately considered the context in which the words were exchanged and whether they could be considered provocative. The High Court also found that the lower court had not correctly applied the objective test for provocation. The court held that the conviction was unreasonable and unsupported by the evidence. The High Court held that the meaning of the provocative words had to be understood in the context of the exchange between the parties and that the lower court had not done so. The conviction was quashed, and the case was remitted to the lower court for a new trial.

The final orders of the High Court were that the conviction of Anderson was quashed, and the case was remitted to the lower court for a new trial. The court held that the lower court had failed to properly assess the evidence regarding the exchange of words between Anderson and Malcolm and had not correctly applied the objective test for provocation. The court held that the conviction was unreasonable and unsupported by the evidence, and that the meaning of the provocative words had to be understood in the context of the exchange between the parties. The case serves as a reminder of the importance of properly assessing evidence and applying the correct legal tests in criminal cases.

Orders