DRAGE -v- PITTS [2007] WASC 203

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2007] WASC 203
Case No:	SJA:1065/2006	Heard:	16 & 30 MARCH 2007
Coram:	SIMMONDS J	Delivered:	31/08/07
No of pages:	25	Judgment Part:	1 of 1
Result:	Appeal dismissed
Category:	B
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Parties:	PHILLIP NEIL DRAGE LOUISE DAWN PITTS
Catchwords:	Appeal against convictions for assault Criminal Code (WA), s 254 Defence to assault of using such force as is reasonably necessary to remove a person who wrongfully remains in a place Whether or not implied licence cancelled Whether or not force used was such as was reasonably necessary for such removal Appeal against convictions for assault Application of Criminal Appeals Act 2004 (WA), s 14(3)
Legislation:	Criminal Appeals Act 2004 (WA), s 14(2), s 14(3) Criminal Code (WA), s 313(1)(b), s 254, Justices Act 1902 (WA), s 199(3)
Case References:	Cowell v Rosehill Racecourse Co Ltd (1937) 56 CLR 605 Halliday v Nevill (1984) 155 CLR 1 Plenty v Dillon (1991) 171 CLR 635 Prior v Kemp [2001] WASCA 22 Prior v Kemp [2001] WASCA 363 Robinson v Hallett [1967] 2 QB 939

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CIVIL

CITATION : DRAGE -v- PITTS [2007] WASC 203 CORAM : SIMMONDS J HEARD : 16 & 30 MARCH 2007 DELIVERED : 31 AUGUST 2007 FILE NO/S : SJA 1065 of 2006 BETWEEN : PHILLIP NEIL DRAGE

Appellant

AND

LOUISE DAWN PITTS

Respondent

ON APPEAL FROM:

Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA

Coram : MAGISTRATE S SHARRATT

File No : GN 2976 of 2005, GN 3669 of 2005

Catchwords:

Appeal against convictions for assault - Criminal Code (WA), s 254 - Defence to assault of using such force as is reasonably necessary to remove a person who wrongfully remains in a place - Whether or not implied licence cancelled - Whether or not force used was such as was reasonably necessary for such removal

Appeal against convictions for assault - Application of Criminal Appeals Act 2004 (WA), s 14(3)

(Page 2)

Legislation:

Criminal Appeals Act 2004 (WA), s 14(2), s 14(3)

Criminal Code (WA), s 313(1)(b), s 254,
Justices Act 1902 (WA), s 199(3)

Result:

Appeal dismissed

Category: B

Representation:

Counsel:

Appellant : In person

Respondent : Ms F B Seaward

Solicitors:

Appellant : In person

Respondent : State Solicitor for Western Australia

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

Cowell v Rosehill Racecourse Co Ltd (1937) 56 CLR 605
Halliday v Nevill (1984) 155 CLR 1
Plenty v Dillon (1991) 171 CLR 635
Prior v Kemp [2001] WASCA 22
Prior v Kemp [2001] WASCA 363
Robinson v Hallett [1967] 2 QB 939

(Page 3)

SIMMONDS J

Introduction

1 This is the hearing of an appeal by leave I had previously granted, on a single ground.

2 The appeal is against the appellant's convictions on two charges that were tried together. Both were charges of the offence of common assault, contrary to Criminal Code s 313(1)(b). Both such assaults were alleged to have been…

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 Drage v Pitts

Details

AGLC: Drage v Pitts [2007] WASC 203
Case: [2007] WASC 203
Decision Date: 31 AUGUST 2007

CaseChat Overview and Summary

The appeal was brought forth by the defendant, Drage, against his convictions for assault under section 254 of the Criminal Code (WA). The dispute arose from an altercation between Drage and Pitts, which led to Drage's conviction for assault. Drage argued that he used force that was reasonably necessary to remove Pitts, who he claimed had wrongfully remained in his place. The case was heard in the Court of Appeal of Western Australia.

The court was required to determine two primary legal issues. The first was whether an implied licence that allows a person to be present on property had been cancelled, thereby justifying Drage's use of force. The second issue was whether the force used by Drage was indeed reasonable in the circumstances for the purpose of removing Pitts from the premises. The court had to assess these issues in light of the statutory provision and relevant case law on the use of force to remove an intruder.

In delivering the judgment, the court held that the implied licence permitting Pitts' presence on Drage's property had been cancelled by Pitts' unlawful conduct. The court found that Drage's use of force was not excessive in the circumstances and was reasonably necessary for the purpose of removing Pitts from the property. The appeal was therefore dismissed, affirming Drage's convictions.

Orders

Orders of the court

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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