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
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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- AGLC
- Bauerhuit v Dean [2011] WASC 258
- Case
- [2011] WASC 253
- Decision Date
CaseChat Overview and Summary
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
Ratio Decidendi
Legal Principle Established
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