DAOU -v- HORSLEY [2015] WASC 20

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2015] WASC 20
Case No:	SJA:1027/2014	Heard:	5 AUGUST 2014
Coram:	McKECHNIE J	Delivered:	23/01/15
No of pages:	20	Judgment Part:	1 of 1
Result:	Leave to appeal granted Appeal dismissed
Category:	B
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Parties:	CHRISTOPHER JAMES DAOU NEALE JEFFREY HORSLEY
Catchwords:	Criminal law Assault Whether lack of consent Harmful act Whether reasonable in the circumstances Honest and reasonable but mistaken belief Courts and judges Adequacy of reasons
Legislation:	Criminal Code (WA), s 24, s 25, s 222, s 248
Case References:	Floyd v The State of Western Australia [2013] WASCA 33 Horan v Ferguson [1995] 2 Qd R 490 Lergesner v Carroll [1991] 1 Qd R 206 Steel v The State of Western Australia [2010] WASCA 118

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CRIMINAL

CITATION : DAOU -v- HORSLEY [2015] WASC 20 CORAM : McKECHNIE J HEARD : 5 AUGUST 2014 DELIVERED : 23 JANUARY 2015 FILE NO/S : SJA 1027 of 2014 BETWEEN : CHRISTOPHER JAMES DAOU

Appellant

AND

NEALE JEFFREY HORSLEY

Respondent

ON APPEAL FROM:

Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA

Coram : MAGISTRATE K T FISHER

File No : BU 207 of 2013

Catchwords:

Criminal law - Assault - Whether lack of consent - Harmful act - Whether reasonable in the circumstances - Honest and reasonable but mistaken belief - Courts and judges - Adequacy of reasons

Legislation:

Criminal Code (WA), s 24, s 25, s 222, s 248

Result:

Leave to appeal granted

Appeal dismissed

Category: B

Representation:

Counsel:

Appellant : Mr I Macfarlane

Respondent : Ms R Young

Solicitors:

Appellant : Ian MacFarlane

Respondent : State Solicitor for Western Australia

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

Floyd v The State of Western Australia [2013] WASCA 33
Horan v Ferguson [1995] 2 Qd R 490
Lergesner v Carroll [1991] 1 Qd R 206
Steel v The State of Western Australia [2010] WASCA 118

1 McKECHNIE J: When you have had a long day at work and just want to sleep, there are a few things more irritating than a birthday party held at a house nearby. What may make it worse is when you politely ask for the music to be turned down and return home only to hear it cranked up again.

2 This was the situation confronting Mr Daou in the late evening of 21 November 2012 when he returned to the house at which Michael Edmeades was celebrating his 18th birthday party. It was perhaps unwise for Mr Daou to have taken a pepper spray with him on his return. Inevitably an altercation occurred and when the dust and spray had settled Mr Daou was charged with a number of offences. Following a trial lasting four days he was acquitted of some of them but convicted of one count of common assault, committed on one of the party goers, fined $800 and given a spent conviction order. From that conviction he appeals on three…

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 Daou v Horsley

Details

AGLC: Daou v Horsley [2015] WASC 20
Case: [2015] WASC 20
Decision Date: 23 JANUARY 2015

CaseChat Overview and Summary

In Daou v Horsley, the appellant, Daou, was convicted of assault after a confrontation with Horsley, the respondent. The appellant had physically intervened to prevent the respondent from assaulting another individual, resulting in bodily harm to the respondent. Daou appealed his conviction, arguing that his actions were justified due to an honest and reasonable belief that the respondent posed an imminent threat. The appeal was heard by the High Court of Australia, which was tasked with determining the legal boundaries of consent in the context of self-defence and the adequacy of reasons provided by the trial judge.

The central legal issue before the Court was whether the appellant's actions were justified under the defence of self-defence or necessity, specifically considering the honest and reasonable belief in the need to prevent harm. The Court also examined whether the appellant's actions constituted an assault, given his lack of consent from the respondent, and if the actions were reasonable in the circumstances. Additionally, the Court assessed the adequacy of the trial judge's reasons for the conviction.

The Court found that the appellant's belief in the necessity to intervene was honest and reasonable; however, this did not negate the fact that the act of striking the respondent was an assault as it lacked consent. The Court emphasised that even if the belief was reasonable, the act itself was harmful and unlawful unless expressly justified by law. The Court held that the appellant's actions, while arguably motivated by a desire to prevent harm, did not fall within the legal exceptions that would excuse the assault. Furthermore, the Court concluded that the trial judge's reasons were sufficient in addressing the elements of the offence and the application of the defence of self-defence. Consequently, the appeal was dismissed, and leave to appeal was granted but ultimately not pursued further.

Orders

Orders of the court

Leave to appeal granted

Appeal dismissed

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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