CROSSWELL -v- AINSWORTH [2014] WASC 186

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2014] WASC 186
Case No:	SJA:1085/2013	Heard:	27 NOVEMBER 2013
Coram:	ALLANSON J	Delivered:	28/05/14
No of pages:	15	Judgment Part:	1 of 1
Result:	Leave to appeal granted on each ground Appeal allowed on ground 3 Conviction set aside New trial ordered
Category:	B
PDF Version

Parties:	BRANDT DAVID CROSSWELL MITCHAL WILLIAM AINSWORTH
Catchwords:	Criminal law Appeal against conviction in Magistrates Court Whether use of excessive force by police Whether finding arrest unlawful excludes defence of provocation Error of law Miscarriage of justice
Legislation:	Criminal Appeals Act 2004 (WA), s 14(2) Criminal Code (WA), s 231, s 235, s 245, s 246, s 318(1)(d) Criminal Investigation Act 2006 (WA), s 16(1)
Case References:	Challis v The State of Western Australia [2014] WASCA 8 Donovan v Mason [2012] WASC 151 Ellis v Ellis [1999] WASCA 30 Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CRIMINAL

CITATION : CROSSWELL -v- AINSWORTH [2014] WASC 186 CORAM : ALLANSON J HEARD : 27 NOVEMBER 2013 DELIVERED : 28 MAY 2014 FILE NO/S : SJA 1085 of 2013 BETWEEN : BRANDT DAVID CROSSWELL

Appellant

AND

MITCHAL WILLIAM AINSWORTH

Respondent

ON APPEAL FROM:

Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA

Coram : MAGISTRATE S R MALLEY

File No : PE 49394 of 2012

Catchwords:

Criminal law - Appeal against conviction in Magistrates Court - Whether use of excessive force by police - Whether finding arrest unlawful excludes defence of provocation - Error of law - Miscarriage of justice

Legislation:
Criminal Appeals Act 2004 (WA), s 14(2)
Criminal Code (WA), s 231, s 235, s 245, s 246, s 318(1)(d)
Criminal Investigation Act 2006 (WA), s 16(1)

Result:

Leave to appeal granted on each ground

Appeal allowed on ground 3
Conviction set aside
New trial ordered

Category: B

Representation:

Counsel:

Appellant : Mr L M Levy SC & Mr S Nigam

Respondent : Ms S Markham

Solicitors:

Appellant : S C Nigam & Co

Respondent : Director of Public Prosecutions (WA)

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

Challis v The State of Western Australia [2014] WASCA 8
Donovan v Mason [2012] WASC 151
Ellis v Ellis [1999] WASCA 30
Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300

1 ALLANSON J: The appellant was charged with two counts of assaulting a public officer in the execution of his duty. He pleaded not guilty. After trial, the appellant was acquitted on the first charge, but convicted on the second. He seeks leave to appeal that conviction.

2 The events in question took place in Murray Street Perth between about 6.49 pm and 6:55 pm on 13 October 2012. The appellant was at a hotel with a group of friends. Two police officers, Acting Sergeant Dawson and Constable Kandic, attended the hotel in response to a complaint (not relating to the appellant or his friends). An object was thrown…

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 Crosswell v Ainsworth

Details

AGLC: Crosswell v Ainsworth [2014] WASC 186
Case: [2014] WASC 186
Decision Date: 28 MAY 2014

CaseChat Overview and Summary

In the case of Crosswell v Ainsworth, the appellant, Crosswell, appealed against his conviction in the Magistrates Court, contesting the decision that he used excessive force against police officers. The primary issue in this case was whether the police officers used excessive force, which would render the arrest unlawful, and whether such a finding precludes the defence of provocation. The appellant also argued that there was an error of law that resulted in a miscarriage of justice. The court was required to determine whether the appeal was valid and, if so, whether the appellant's conviction should be set aside and a new trial ordered.

The court examined the evidence presented and the legal principles applicable to the case. It considered whether the police officers used excessive force and if such a finding precluded the defence of provocation. The court also reviewed whether the appellant's conviction was based on an error of law that led to a miscarriage of justice. In assessing these issues, the court found that the appellant had demonstrated a reasonable prospect of success on appeal, particularly concerning the potential error of law regarding the exclusion of the defence of provocation in the context of an unlawful arrest.

Consequently, the court granted leave to appeal on all grounds presented by the appellant. The appeal was allowed on the third ground, which pertained to the error of law and the miscarriage of justice. The court set aside the conviction and ordered a new trial, recognising the need for a fresh consideration of the evidence and the applicable legal principles. This decision ensures that the appellant receives a fair hearing and that any legal errors are rectified in the new trial.

Orders

Orders of the court

Leave to appeal granted on each ground

Appeal allowed on ground 3

Conviction set aside

New trial ordered

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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