ON APPEAL FROM:
Jurisdiction              :  SUPREME COURT OF WESTERN AUSTRALIA
Coram  :JENKINS J
Citation  :MEYERS -v- DOUST [2008] WASC 112
File No  :SJA 1023 of 2008

Catchwords:

Criminal law - Appeal from single judge - Whether judge correct to overturn appellant's acquittal in Magistrates Court - Whether reasons of magistrate adequate - Whether existence of a hand gesture conclusion open to magistrate - Whether gesture constituted wrongful act or insult - Whether defence of provocation open in circumstances of case - Criminal Code s 245, s 246

Legislation:

Criminal Appeals Act 2004 (WA), s 40(1)(e)
Criminal Code (WA), s 221(1)(d), s 222, s 245, s 246, s 313(1)(a)

Result:

Leave to appeal refused
Appeal dismissed

Category: B

Representation:

Counsel:

Appellant: Mr M R Hall
Respondent: Ms C J Thatcher

Solicitors:

Appellant: Hall & Hall Lawyers
Respondent: State Solicitor for Western Australia

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

Censori v The Queen [1983] WAR 89
de la Espriella‑Velasco v The Queen [2006] WASCA 31; (2006) 31 WAR 291
Hart v The Queen [2003] WASCA 213; (2003) 27 WAR 441
Johnson v The Queen (1976) 136 CLR 619
Masciantonio v The Queen [1995] HCA 67; (1995) 183 CLR 58
Meyers v Doust [2008] WASC 112
Moffa v The Queen (1977) 138 CLR 601
Mount Lawley Pty Ltd v Western Australian Planning Commission [2004] WASCA 149; (2004) 29 WAR 273
Sreckovic v The Queen (1973) WAR 85
Stingel v The Queen[1990] HCA 61; (1990) 171 CLR 312
WCW v The State of Western Australia [2008] WASCA 232

WHEELER JA: I agree with Miller JA.
BUSS JA: I agree with Miller JA.
MILLER JA: The appellant seeks leave to appeal from a decision of Jenkins J (Meyers v Doust [2008] WASC 112) in which the respondent's appeal from the decision of a magistrate was allowed and the decision of the magistrate set aside. There were consequential orders that the appellant be convicted on a charge of assault in circumstances of aggravation and that the charge be remitted to the magistrate for the appellant to be sentenced according to law.
The question of leave to appeal from the decision of Jenkins J (the single judge) has been referred to this court for determination with the appeal. There is an application for leave to adduce further evidence by way of an affidavit of the appellant sworn 30 October 2008. That application has also been referred to this court for determination at the hearing of the appeal.

Grounds of appeal

The grounds of appeal relied upon by the appellant challenge the conclusions of the single judge in the following way.

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 Doust v Meyer

Details

AGLC: Doust v Meyer [2009] WASCA 65
Case: [2009] WASCA 65
Decision Date: 24 MARCH 2009

CaseChat Overview and Summary

Doust v Meyer was a case where the appellant, Doust, sought to appeal against the decision of the primary judge to overturn his acquittal in the Magistrates Court. The dispute centred on whether the primary judge was correct to overturn the decision of the magistrate who had acquitted Doust of charges related to assault occasioning actual bodily harm and using insulting language. The case was heard in the Court of Appeal.

The key legal issues before the court were whether the magistrate's reasons were adequate, whether the magistrate was correct to conclude that a hand gesture constituted a wrongful act or insult, and whether the defence of provocation was available in the circumstances of the case. The appellant argued that the magistrate had failed to consider the evidence of provocation and had not adequately considered the adequacy of his reasons. The respondent argued that the magistrate's reasons were sufficient and that the primary judge was correct to overturn the acquittal.

The court found that the magistrate's reasons were adequate and that the primary judge was correct to overturn the acquittal. The court found that the hand gesture was an insult and that the defence of provocation was not available in the circumstances of the case. The court held that the appellant's conduct was provocative, but that this did not excuse his actions. The court held that the magistrate was open to conclude that the hand gesture constituted a wrongful act or insult and that the primary judge was correct to overturn the acquittal. The appeal was dismissed and leave to appeal was refused.

Orders

Orders of the court

Leave to appeal refused

Appeal dismissed

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Actions

Citations

Doust v Meyer [2009] WASCA 65

Most Recent Citation

Anderson v Malcolm [2010] WASC 308

Cases Citing This Decision

Peros v Murray [2023] WASC 208
Citation 1 (Para 1)

…WASCA 213; (2003) 27 WAR 441 (Steytler J, with whom McLure J and, on this point, Pullin J agreed) [34] ‑ [35] and [67]. See also Doust v Meyer [2009] WASCA 65 (Miller JA, with whom Wheeler and Buss JJA, as his Honour then was, agreed) [73], [80].…
Rodrigues v Ainsworth [2014] WASC 101
Citation 2 (Para 2)

…an accused person must establish, but is absorbed in the application of the test of the effect of provocation upon the ordinary person: Doust v Meyer [2009] WASCA 65 [80]. The respondent accepts that in assessing the effect of the complainant's assault upon the appellant it was appropriate for the magistrate to ta…
McDavitt v McDavitt [2013] WADC 22
Citation 3

…w (1938) 60 CLR 336 Collector of Customs v Agfa-Gevaert Ltd [1996] HCA 36; (1996) 186 CLR 389 Davis v The Queen (1998) 100 A Crim R 573 Doust v Meyer [2009] WASCA 65 Ellis v Ellis [1999] WASCA 30 Evans v The State of Western Australia [2011] WASCA 182 Fogg v The State of Western Australia [2011] WASCA 11 GAS v The…
Anderson v Malcolm [2010] WASC 308
Citation 4 (Para 3)

…or history as served to identify the implications and to affect the gravity of the particular wrongful act or insult': Stingel (324); Doust v Meyer [2009] WASCA 65, 71 (Miller JA).…

See all citing cases →

Cases Cited

WCW v The State of Western Australia [2008] WASCA 232
Citation 1 (Para 6)

…of events and part, but not all, of other versions of events as they were given in evidence. As Buss JA said in WCW v The State of Western Australia [2008] WASCA 232, at [14]: Where a criminal trial is conducted before a judge and jury, the jury is, of course, the tribunal of fact. The jury is entitled to 'work ou…
Meyers v Doust [2008] WASC 112
Citation 2 (Para 3)

…MILLER JA : The appellant seeks leave to appeal from a decision of Jenkins J ( Meyers v Doust [2008] WASC 112) in which the respondent's appeal from the decision of a magistrate was allowed and the decision of the magistrate set aside. There were consequential orders that the appellant be convicted on a charge of…
R v Watt [2006] QCA 539
Citation 3 (Para 6)

…s JJ). Also see Stevens v The Queen (2005) 227 CLR 319 [29]; R v Soloman [2006] QCA 244 [33] ‑ [35]; R v SAX [2006] QCA 397 [18] - [23]; [ R v Watt [2006] QCA 539 [25] (Keane JA, Williams and Jerrard JJA agreeing)] [30]. [14]…
R v SAX [2006] QCA 397
Citation 4 (Para 6)

…, McTiernan, Fullagar, Kitto and Menzies JJ). Also see Stevens v The Queen (2005) 227 CLR 319 [29]; R v Soloman [2006] QCA 244 [33] ‑ [35]; R v SAX [2006] QCA 397 [18] - [23]; [ R v Watt [2006] QCA 539 [25] (Keane JA, Williams and Jerrard JJA agreeing)] [30]. [14]…
R v Soloman [2006] QCA 244
Citation 5 (Para 6)

…mith (1960) 103 CLR 539, 545 (Dixon CJ, McTiernan, Fullagar, Kitto and Menzies JJ). Also see Stevens v The Queen (2005) 227 CLR 319 [29]; R v Soloman [2006] QCA 244 [33] ‑ [35]; R v SAX [2006] QCA 397 [18] - [23]; [ R v Watt [2006] QCA 539 [25] (Keane JA, Williams and Jerrard JJA agreeing)] [30]. [14]…
De La Espriella-Velasco v The Queen [2006] WASCA 31
Citation 6 (Para 4)

…orm of fresh or new evidence, but this will not necessarily be so. A full review of the issue is to be found in de la Espriella‑Velasco v The Queen [2006] WASCA 31; (2006) 31 WAR 291 per Pullin JA at [146] et seq . The conclusions reached by his Honour (at [150]) are as follows: (a)The discretion to receive furthe…
Stevens v The Queen [2005] HCA 65
Citation 7 (Para 6)

…ither party [has] said': Williams v Smith (1960) 103 CLR 539, 545 (Dixon CJ, McTiernan, Fullagar, Kitto and Menzies JJ). Also see Stevens v The Queen (2005) 227 CLR 319 [29]; R v Soloman [2006] QCA 244 [33] ‑ [35]; R v SAX [2006] QCA 397 [18] - [23]; [ R v Watt [2006] QCA 539 [25] (Keane JA, Williams and Jerrard JJA…
Mount Lawley Pty Ltd v Western Australian Planning Commission [2004] WASCA 149
Citation 8 (Para 8)

…ds that the inadequacy of reasons is itself an error on the part of the magistrate ( cf Mount Lawley Pty Ltd v Western Australian Planning Commission [2004] WASCA 149; (2004) 29 WAR 273 (at [26] ‑ [29]).…
Hart v The Queen [2003] WASCA 213
Citation 9 (Para 7)

…st be of such a nature as to be sufficient to deprive an ordinary person of the power of self‑control ( Stingel at 323). (See also Hart v The Queen [2003] WASCA 213; (2003) 27 WAR 441 per Steytler J at [37] ‑ [40] for a detailed discussion on the meaning of 'wrongful act or insult' in the context of s 245 of the Cr…
Masciantonio v The Queen [1995] HCA 67
Citation 10 (Para 8)

…73) WAR 85; Johnson v The Queen (1976) 136 CLR 619; Moffa v The Queen (1977) 138 CLR 601; Censori v The Queen [1983] WAR 89; Masciantonio v The Queen [1995] HCA 67; (1995) 183 CLR 58.…
Stingel v The Queen [1990] HCA 61
Citation 11 (Para 6)

…f law, constitute provocation reducing murder to manslaughter did not generally include a case of 'mere words': see discussion in Stingel v The Queen [1990] HCA 61; (1990) 171 CLR 312 at 322.…
Moffa v The Queen [1977] HCA 14
Citation 12 (Para 8)

…Hart per Steytler J at [67] and cases cited, including Sreckovic v The Queen (1973) WAR 85; Johnson v The Queen (1976) 136 CLR 619; Moffa v The Queen (1977) 138 CLR 601; Censori v The Queen [1983] WAR 89; Masciantonio v The Queen [1995] HCA 67; (1995) 183 CLR 58.…
Johnson v The Queen [1976] HCA 44
Citation 13 (Para 8)

…ocation upon the ordinary person: see Hart per Steytler J at [67] and cases cited, including Sreckovic v The Queen (1973) WAR 85; Johnson v The Queen (1976) 136 CLR 619; Moffa v The Queen (1977) 138 CLR 601; Censori v The Queen [1983] WAR 89; Masciantonio v The Queen [1995] HCA 67; (1995) 183 CLR 58.…
Parker v The Queen [1963] HCA 14
Citation 14 (Para 13)

…nary person, the court will be affected by contemporary conditions and attitudes: see also Moffa (at 616 ‑ 617) per Gibbs J; Parker v The Queen (1963) 111 CLR 610 at 654, per Windeyer J. (h)The 'ordinary person' is not the 'reasonable man' in the law of negligence as 'it is all but impossible to envisage circumstance…
Williams v Smith [1960] HCA 22
Citation 15 (Para 6)

…he jury is entitled to 'work out for themselves a view of the case which [does] not exactly represent what either party [has] said': Williams v Smith (1960) 103 CLR 539, 545 (Dixon CJ, McTiernan, Fullagar, Kitto and Menzies JJ). Also see Stevens v The Queen (2005) 227 CLR 319 [29]; R v Soloman [2006] QCA 244 [33] ‑ […
[1986] 1 SCR 313 [1986] 1 SCR 313
Citation 16 (Para 13)

…rsons are held to the same standard notwithstanding their distinctive personality traits and varying capacities to achieve the standard' ( R v Hill [1986] 1 SCR 313 at 343, per Wilson J) (at 324). (c)However, the objective test is not to be applied in a vacuum or without regard to such of the accused's personal cha…

Legislation Cited

Criminal Appeals Act 2004 (WA) 40(1)(e), 40(1)(e))
2 mentions (from Para 4)