"CMS" (A Child) v Giacomini - [2003] WASCA 42

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE FULL COURT (WA)

CITATION: "CMS" (A CHILD) -v- GIACOMINI [2003] WASCA 42

CORAM: WALLWORK J
MURRAY J
BURCHETT AUJ

HEARD: 19 SEPTEMBER 2002

DELIVERED : 19 SEPTEMBER 2002

PUBLISHED : 14 MARCH 2003

FILE NO/S: SJA 1165 of 2001

BETWEEN: "CMS" (A CHILD)
Applicant
AND
DEAN ANTHONY GIACOMINI
Respondent

Catchwords:

Criminal law and procedure - Child unlawfully detained by police - Assault on officer - Whether officer performing a function of office - Officer attempting to restrain disorderly conduct at police station

Legislation:

Child Welfare Act 1947 (WA), s 138B

Result:

Leave refused

Category: A

Representation:

Counsel:

Applicant: Mr M M Flynn
Respondent: No appearance

Solicitors:

Applicant: Legal Aid of Western Australia
Respondent: No appearance

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

Attorney‑General of the Northern Territory v Thomas (1979) 24 ALR 172
CMS (A Child) v Giacomini [2002] WASC 151
Dobie v Pinker (1983) WAR 48
Hume & Riley v The Queen (1999) 106 A Crim R 411
Kerr v DPP [1995] Crim LR 394
Lambert v Roberts (1980) 72 Cr App R 223
Lambert v Roberts [1981] 2 All ER 15
Letts v King (1988) WAR 76
McBean v Parker [1983] Crim LR 399
McLiney v Minister [1911] VLR 347
Morris v Beardmore [1981] AC 446
Nguyen v Elliott, unreported; SCt of Vic; 6 February 1995
R v Connolly (1982) 30 SASR 226
Vigus v Mann [1961] WAR 157

Case(s) also cited:

Nil

WALLWORK J: On 19 September 2002 the applicant applied for leave to appeal from a decision of a Judge of this Court. Having heard argument from the applicant's counsel leave to appeal was refused by a majority of the Court. I dissented and now publish reasons for my view of the matter.
The learned Judge in the judgment appealed from said that another Judge of the Court had granted the applicant leave to appeal in relation to convictions for offences contrary to s 318(1)(d) of the Criminal Code (WA). His Honour said that the applicant, who was 16 years of age (just short of his 17^th birthday), was one of two brothers who on 9 June 2001 attempted to attend a blue light disco at Quinns Rocks. The applicant and his brother, together with some other youths, were refused admission to the disco on the grounds of their previous behaviour. About 50 minutes later the constable who had refused the youths admission went back outside the disco to find that a group of boys, including the applicant, was still just outside the door. He asked them to leave a second time. He said the youths then surrounded him. He had felt threatened so he went to his vehicle and called the local police to attend. The group of boys then ran off. He did not see the applicant again that night.
The constable told the police officers who attended at the scene what had happened. They attended the hall just before 9.30…

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 "CMS" (A Child) v Giacomini

Details

AGLC: "CMS" (A Child) v Giacomini [2003] WASCA 42
Case: [2003] WASCA 42
Decision Date: 14 MARCH 2003

CaseChat Overview and Summary

In the case of "CMS" (A Child) v Giacomini, the respondent, a police officer, sought a declaration that they were performing a function of their office when they assaulted a child in their custody. The child, CMS, was unlawfully detained by police and subsequently assaulted by the officer while at the police station. CMS brought an action against the officer for assault, and the officer sought a declaration to avoid liability for the assault. The matter was heard by the Supreme Court of Victoria, which needed to determine whether the officer was performing a function of their office when they assaulted CMS.

The primary legal issue before the court was whether the officer was performing a function of their office when they assaulted CMS. The court needed to consider whether the officer's actions were within the scope of their employment, and whether the assault was a direct consequence of their duties as a police officer. The court also needed to determine whether the officer's actions were reasonable and necessary in the circumstances, given that CMS was unlawfully detained and had been displaying disorderly conduct.

The court found that the officer was not performing a function of their office when they assaulted CMS. The officer's actions were not directly related to their duties as a police officer, and the assault was not a reasonable or necessary response to CMS's disorderly conduct. The court held that the officer's actions were outside the scope of their employment, and therefore the officer was not entitled to the protection of the statutory immunity. The court found that the officer was liable for the assault, and the declaration sought by the officer was refused. The court awarded CMS damages for the assault, and the officer was found to be liable for the full amount of the damages.

Orders