Ellis v Ellis - [1999] WASCA 30

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION: ELLIS -v- ELLIS [1999] WASCA 30

CORAM: TEMPLEMAN J

HEARD: 7 MAY 1999

DELIVERED : 21 MAY 1999

FILE NO/S: SJA 1002 of 1999

BETWEEN: STEPHEN MICHAEL ELLIS
Appellant
AND
TIM ELLIS
Respondent

Catchwords:

Criminal law - Offences against the person - Assault - Appeal against conviction by Stipendiary Magistrate - Defence of provocation - Inference open that appellant deprived of self-control by provocative conduct - Magistrate could not have been satisfied beyond reasonable doubt - Force proportional to provocation.

Legislation:

Criminal Code 1913 (WA), s 246

Justices Act 1902 (WA), s 199

Result:

Conviction quashed, verdict of acquittal substituted.

Representation:

Counsel:

Appellant: In Person
Respondent: Ms K E McDonald

Solicitors:

Appellant: In Person
Respondent: State Crown Solicitor

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

Bartlett v Torr & Magdn, unreported; SCt of WA (Walsh J); Library No 93031; 31 May 1993
Chamberlain v The Queen (No 2) (1984) 153 CLR 521
Mehmet Ali v The Queen (1957) 59 WALR 28
R v Tralka [1965] Qd R 225
Vrisakis v Australian Securities Commission (1993) 9 WAR 395

Case(s) also cited:

Abalos v Australian Postal Commission (1990) 171 CLR 167
Aitkin v Wilson [1974] WAR 166
Brunskill v Sovereign Marine and General Insurance Co Ltd (1985) 59 ALJR 842
Devries v Australian National Railways Commission (1993) 177 CLR 472
Giannasi v Waghorne, unreported; SCt of WA; Library No 960551; 11 September 1996
Neale v Sloan, unreported; SCt of WA (Wheeler J); Library No 970729; 6 August 1997

TEMPLEMAN J: Mr Stephen Michael Ellis appeals against the decision of a Stipendiary Magistrate who convicted him on a charge of assault in the Court of Petty Sessions at Rockingham.
The appellant is a resident of Rockingham. The complainant, Ms Lisa Gaye Scarrott, also lives in Rockingham in the same neighbourhood as the appellant. The appellant claims that for over two years he has been the subject of abuse and intimidation by the complainant. Because the appellant feared for his safety, he sought, and obtained, a restraining order against the complainant in mid-July 1998.
A few days later, on 19 July 1998, at the Woolworths supermarket in Rockingham, the appellant and the complainant were involved in an altercation which resulted in the appellant being charged with assault. The appellant pleaded not guilty and was tried before a Stipendiary Magistrate on 23 December 1998.
At the trial, evidence about the alleged assault was given only by the complainant and the appellant. There were no other witnesses to the incident. In addition, a video-recording of an interview made between the appellant and police officers on the day following the incident was played to the Court.
There was a conflict of evidence between the complainant and the appellant. In the result, the learned Magistrate accepted in large measure the account given by the appellant. As appears from the reasons of the learned Magistrate (AB 40-41), her principal findings of fact may be summarised as follows:
1.The complainant followed the…

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 Ellis v Ellis

Details

AGLC: Ellis v Ellis [1999] WASCA 30
Case: [1999] WASCA 30
Decision Date: 21 MAY 1999

CaseChat Overview and Summary

The appeal in Ellis v Ellis was heard by the Court of Criminal Appeal, focusing on a conviction for assault that the appellant, Ellis, received from a Stipendiary Magistrate. The case revolved around whether the appellant's actions, which led to his conviction, were justified under the defence of provocation. The respondent, Ellis, contested the conviction on the grounds that the magistrate had not correctly applied the legal principles surrounding provocation, particularly concerning the proportionality of the force used in response to the provocative conduct.

The court was required to decide if the appellant's actions were indeed provoked to the extent that he lost self-control and, if so, whether the force used was proportionate to the provocation. The legal issues at the heart of the appeal included the standard of proof required for provocation, the interpretation of the relevant statutory provisions, and the assessment of whether the magistrate had correctly applied these principles in determining the appellant's culpability.

The court found that the magistrate could not have been satisfied beyond reasonable doubt that the appellant was not acting under the influence of provocation. The force used by the appellant was deemed to be proportional to the provocation he experienced. Given these considerations, the court determined that the magistrate's decision was not supported by the evidence and that the appeal should be allowed, resulting in the quashing of the conviction. The case underscores the importance of correctly applying the principles of provocation and the necessity for a thorough examination of the proportionality of the response to the provocative conduct.

Orders