Donovan v Mason - [2012] WASC 151

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION: DONOVAN -v- MASON [2012] WASC 151

CORAM: EDELMAN J

HEARD: 4 MAY 2012

DELIVERED : 9 MAY 2012

FILE NO/S: SJA 1130 of 2011

BETWEEN: SCOTT MICHAEL DONOVAN
Appellant
AND
GARRY SHANE MASON
Respondent

ON APPEAL FROM:
Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram  :MAGISTRATE K T FISHER
File No  :CO 88 of 2011

Catchwords:

Criminal law - Defences - Provocation - Whether learned magistrate properly addressed the defence of provocation - Whether learned magistrate addressed question of whether act of complainant in biting appellant was an act done in self-defence which would exclude the defence of provocation - Whether error made by the learned magistrate in the complainant's subjective motivation for biting the appellant was material

Legislation:

Criminal Code (WA), s 245, s 246, s 317(1)
Magistrates Court Act 2004 (WA), s 31

Result:

Appeal allowed
Conviction set aside
Retrial ordered

Category: B

Representation:

Counsel:

Appellant: Mr S F Rafferty
Respondent: Ms S Markham

Solicitors:

Appellant: Young & Young
Respondent: Director of Public Prosecutions (WA)

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

Ellis v Ellis [1999] WASCA 30
Hart v The Queen [2003] WASCA 213; (2003) 27 WAR 441
Lee Chun-Chuen v The Queen [1963] AC 220

EDELMAN J:

Introduction and summary

The appellant was charged with offences which included an offence, under s 317(1) of the Criminal Code (WA), of aggravated assault occasioning bodily harm. It was alleged that he unlawfully assaulted Mrs Kerry Donovan and caused her bodily harm in circumstances of aggravation which were that the appellant was in a 'family and domestic relationship' with Mrs Donovan.
The appellant conceded that he had caused bodily harm to Mrs Donovan (his wife) and that there was a family and domestic relationship between them (ts 77). The appellant relied upon defences of self‑defence and provocation. The focus of the appeal was on the defence of provocation. The appellant's case at trial was that Mrs Donovan's act of biting the appellant's hand immediately before he punched her was an act of provocation.
The respondent submitted that the learned magistrate's reasons should be understood as having rejected the defence of provocation for one reason. The respondent relied only upon a submission that his Honour had found that Mrs Donovan's act of biting the appellant was done in self‑defence; as a lawful act the biting therefore could not amount to provocation within the definition in s 245. The learned magistrate's reasons do not support such a conclusion, perhaps unsurprisingly because no such legal submission about the definition of provocation was made at trial. If it were correct that the learned magistrate had made such a finding, this would have had the effect that an otherwise immaterial misstatement of fact in his reasons would have had real significance and would have caused a miscarriage of justice.

The evidence and background to the assault

The appellant and Mrs Donovan were married for 16 years. They have two children. They lived…

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 Donovan v Mason

Details

AGLC: Donovan v Mason [2012] WASC 151
Case: [2012] WASC 151
Decision Date: 9 MAY 2012

CaseChat Overview and Summary

The case of Donovan v Mason was brought before the court in the context of a criminal law matter, where the appellant, Donovan, was being prosecuted for assault. The dispute centred on the defence of provocation, with the appellant claiming that the complainant, Mason, had bitten him, which led to his response. The matter was heard by a magistrate, and Donovan sought a review of the magistrate's decision, arguing that there were errors in the handling of the defence of provocation and whether the complainant's actions were considered in self-defence.

The primary legal issues before the court were whether the magistrate correctly addressed the defence of provocation, whether the magistrate properly considered if Mason's biting of Donovan constituted an act of self-defence, and whether any error by the magistrate in assessing Mason's subjective motivation for biting Donovan was material. These issues required the court to consider the application of legal principles concerning provocation and self-defence, and whether any errors in the magistrate's handling of these defences warranted a quashing of the conviction.

The court examined the magistrate's handling of the defence of provocation and found that the magistrate did not adequately address whether Mason's biting was an act done in self-defence, which would have excluded the availability of the defence of provocation. The court determined that the magistrate's consideration of Mason's subjective motivation for biting Donovan was flawed and that this error was indeed material. Consequently, the court quashed the conviction and ordered a new trial to be conducted, allowing the parties to present their arguments in a manner that properly addressed the defences of provocation and self-defence.

The final orders of the court were to quash the conviction of the appellant, Donovan, and order a re-trial. This was to ensure that the new trial would be conducted with proper consideration of the defences of provocation and self-defence, and that any errors in the assessment of the complainant's subjective motivation would be avoided. The court's decision underscored the importance of correctly applying legal principles in criminal cases, particularly in relation to the defences available to the accused.

Orders