Bauerhuit v Dean

Case [2011] WASC 253

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CRIMINAL

CITATION:   BAUERHUIT -v- DEAN [2011] WASC 253

CORAM:   COMMISSIONER SLEIGHT

HEARD:   4 AUGUST 2011

DELIVERED          :   14 SEPTEMBER 2011

FILE NO/S:   SJA 1039 of 2011

BETWEEN:   RICHARD JOHN BAUERHUIT

Appellant

AND

PAUL ANTHONY DEAN
Respondent

ON APPEAL FROM:

Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA

Coram  :MAGISTRATE S P SHARRATT

File No  :GN 1422 of 2010, GN 1423 of 2010, GN 1424 of 2010, GN 457 of 2011

Catchwords:

Criminal law and procedure - Particulars of assault provided by prosecution - Prosecution failed to prove particulars - Magistrate convicted on different particulars - Power of magistrate to amend particulars at conclusion of evidence

Criminal law - Defence of emergency - Adequacy of magistrate's reasons - Whether verdict unsafe and unsound - Turns on its own facts

Legislation:

Criminal Appeals Act 2004 (WA), s 8, s 8(1), s 9(2), s 14
Criminal Code (WA), s 74A(2)(a), s 172(2), s 318(1)(d), s 591, s 525
Criminal Procedure Act 2004 (WA), s 21, s 132, sch 1 cl 5, cl 8
Justices Act 1902 (WA), s 46
Magistrates Court Act 2004 (WA), s 31(1)

Result:

Appeal allowed and conviction on GN 1422 of 2010 set aside
Appeal dismissed on ground 5
Leave to appeal on ground 6 refused

Category:    A

Representation:

Counsel:

Appellant:     Mr T S Jardine

Respondent:     Ms G M Cleary

Solicitors:

Appellant:     Altorfer & Stow

Respondent:     Director of Public Prosecutions (WA)

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

Bennett v Carruthers [2010] WASCA 131

Director of Public Prosecutions (Nauru) v Fowler [1984] HCA 48; (1984) 154 CLR 627

Francis v Todd [2011] WASC 185

Giles v Samuels (1972) 3 SASR 307

Hawker v Coulthard [2011] WASC 139

Ibrahim v Herring [2010] WASC 190

Ingham v McKenzie [2009] WASC 351

Jago v District Court of New South Wales (1989) 168 CLR 23

John L Pty Ltd v Attorney‑General (NSW) [1987] HCA 42; (1987) 163 CLR 508

Johnson v Miller (1937) 59 CLR 467

Johnson v The State of Western Australia [2009] WASCA 71

M v The Queen [1994] HCA 63; (1994) 181 CLR 487

McKay Investments Pty Ltd v Kent [2011] TASSC 11

R v Johal; R v Ram [1973] QB 475

Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473

Sheppard v Blakey [2001] WASCA 309

  1. COMMISSIONER SLEIGHT:  On 14 and 15 March 2011 before his Honour Magistrate Sharratt, in the Geraldton Magistrates Court, the appellant was tried on four charges:

    1.One count of behaving in a disorderly manner in a public place contrary to s 74A(2)(a) of the Criminal Code (WA) (GN 1423 of 2010).

    2.One count of obstructing a police officer in the performance of his functions contrary to s 172(2) of the Code (GN 1424 of 2010).

    3.One count of assaulting a public officer then performing a function of his duty contrary to s 318(1)(d) of the Code (GN 1422 of 2010).

    4.One count of assaulting a public officer…

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Details
AGLC
Bauerhuit v Dean [2011] WASC 258
Case
[2011] WASC 253
Decision Date

CaseChat Overview and Summary

Bauerhuit was the appellant and Dean was the respondent in this case heard by the Supreme Court of Western Australia. The appellant was convicted by a magistrate of assault occasioning actual bodily harm and resisting arrest. The appellant appealed on various grounds including that the magistrate erred in law in rejecting the defence of emergency, and that the verdict was unsafe and unsound. The court had to decide whether the magistrate erred in law by rejecting the defence of emergency, and whether the verdict was unsafe and unsound.

The court found that the magistrate's reasons for rejecting the defence of emergency were sufficiently clear and adequate to disclose the intellectual process behind the conclusion that the defence did not apply. The court held that although it would have been preferable if the magistrate had expressly referred to the component or components of the defence which he found not to have been proved, the magistrate's rejection of the defence was based upon a factual finding that the appellant had created any risk of injury to his neck himself by not submitting to the arrest. The court concluded that the magistrate's reasons were adequate to disclose the intellectual process behind the conclusion that the defence did not apply.

The appeal was dismissed, although leave to appeal was granted on one ground. The court held that the verdict was safe and sound, and that there was no miscarriage of justice.

No further orders were made.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

This decision was prior to the enactment of s 31(1) of the Magistrates Court Act 2004 (WA) which provides as follows:31.Judgments, content of(1)The Court’s reasons for a judgment in a case ‑(a)need only identify the facts that the Court has accepted in coming to its decision and give the reasons for doing so;(b)need only identify the law that the Court has applied in coming to its decision and give the reasons for doing so;(c)need not canvass all the evidence given in the case; and(d)need not canvass all the factual and legal arguments or issues arising in the case. By relieving the magistrate of the need to canvass all the evidence and/or all the factual and legal arguments or issues arising in the case, the section is designed to reduce the obligation which arises when a magistrate is giving his or her reasons for a decision. This recognises that magistrates are generally dealing with long lists of matters and have little opportunity to spend long periods framing their decisions. Most decisions are given on an extempore basis and are meant to provide a summary disposition of the matter before the court. Although the operation of the section reduces the extent to which a magistrate must give reasons, the magistrate is still required to identify the intellectual process for reaching a decision: Bennett v Carruthers [31] (Mazza J); Francis v Todd[17] (Edelman J). In this matter, the magistrate stated at the commencement of his decision that the appellant was presumed innocent, the prosecution had the burden of proving the charges beyond reasonable doubt and this included a burden on the prosecution to negative any defence (15 March 2011, ts 56). The magistrate specifically referred to the defence of emergency and, although he did not analyse the components of the defence, he was not obliged to do so. The magistrate rejected the defence expressly on the basis of a factual finding that the appellant had created any risk of injury to his neck himself by not submitting to the arrest. Based upon this factual finding, it is implicit in the magistrate's decision that the prosecution had proved that the defence did not apply. The struggle was not responsive to an emergency. Therefore any belief by the appellant that he needed to struggle because of the existence of a sudden or extraordinary emergency was not based on reasonable grounds. Although it would have been preferable if the magistrate had expressly referred to the component or components of the defence which he found not to have been proved, in my view, his reasons were sufficiently clear and adequate to disclose his underlying intellectual process behind the conclusion he reached that the defence did not apply. Accordingly, although I will grant leave to appeal on ground 5, the appeal is dismissed. Ground 6 of the appeal is on the basis that a miscarriage of justice has occurred because the magistrate should not have rejected the defence of emergency. This ground of appeal is based upon a contention that on the evidence given at the trial, the verdict was unsafe and unsound and therefore a miscarriage of justice has occurred.

Ratio Decidendi

Legal Principle Established

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