ON APPEAL FROM:
Jurisdiction              :  SUPREME COURT OF WESTERN AUSTRALIA
Coram  :PULLIN J
Citation  :GARDNER -v- CAPORN [2004] WASCA 14
File No  :SJA 1072 of 2003

Catchwords:

Criminal law - Appeal - Obligation of Magistrate to give reasons - Whether sufficient

Criminal law - Appeal - Assault occasioning bodily harm - Selfdefence - Provocation - Honest and reasonable but mistaken belief - Acceptance of appellant's evidence as to events and his perception of threat - Objective elements of statutory "defences" - Whether Magistrate made necessary findings

Criminal law - Appeal - Evidence of appellant's good character - Not mentioned by Magistrate in reasons - Whether error of law

Criminal law - Practice and procedure - Complaint charging a single assault - Whether latent duplicity

Legislation:

Nil

Result:

Leave to appeal granted
Appeal dismissed

Category: A

Representation:

Counsel:

Appellant: Mr D Grace QC & Mr A W Buchan
Respondent: Mr S E Stone

Solicitors:

Appellant: Hotchkin Hanly
Respondent: State Director of Public Prosecutions

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

Attwood v The Queen (1960) 102 CLR 353
Carlson v King (1947) 64 WN (NSW) 65
Fleming v The Queen (1998) 197 CLR 250
Gardner v Caporn [2004] WASCA 14
Garrett v Nicholson (1999) 21 WAR 226
Gelavis v Australian Securities and Investments Commission [2003] WASCA 300
Haskett v Police [2005] SASC 174
Johnson v Miller (1937) 59 CLR 467
Lloyd v Faraone [1989] WAR 154
Melbourne v The Queen (1999) 198 CLR 1
Mount Lawley Pty Ltd v Western Australian Planning Commission (2004) 29 WAR 273
Pettitt v Dunkley [1971] 1 NSWLR 376
R v Courtney‑Smith (No 2) (1990) 48 A Crim R 49
R v Eades (1991) 57 A Crim R 151
R v F, unreported; CCA SCt of NSW; 28 October 1996
R v Giretti (1986) 24 A Crim R 112
R v Morrow and Flynn [1991] 2 Qd R 309
R v Nevermann (1989) 43 A Crim R 347
R v Rippingale (1999) 109 A Crim R 304
R v Telfer (2004) 142 A Crim R 132
R v Trimboli (1979) 21 SASR 577
R v Xu Dong Chen, unreported; SCt of Qld; 21 October 1997
S v The Queen (1989) 168 CLR 266
Smith v The Queen (1992) 7 WAR 527
Stanton v Abernathy (1990) 19 NSWLR 656
Stewart v The King (1921) 29 CLR 234
Stratis v Police, unreported; SCt of SA; No 6886; 7 October 1998
Taylor v The Queen, unreported; CCA SCt of Tas; 19 February 1997
Vrisakis v Australian Securities Commission (1993) 9 WAR 395
Walsh v Tattersall (1996) 188 CLR 77

Case(s) also cited:

Abalos v Australian Postal Commission (1990) 171 CLR 167
Calvetti v…

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 Gardner v Caporn

Details

AGLC: Gardner v Caporn [2005] WASCA 153
Case: [2005] WASCA 153
Decision Date: 12 AUGUST 2005

CaseChat Overview and Summary

The case of Gardner v Caporn was heard in the Court of Criminal Appeal, where the appellant, Gardner, sought to appeal his conviction and sentence for assault occasioning bodily harm. The trial in the lower court was presided over by a Magistrate who found Gardner guilty and sentenced him accordingly. Gardner's appeal focused on several grounds, including the adequacy of the Magistrate's reasons, the application of self-defence and provocation in the context of an honest and reasonable but mistaken belief, and the objective elements of statutory defences.

The court was tasked with determining whether the Magistrate's reasons were sufficient and whether they appropriately addressed the principles of self-defence and provocation. Additionally, the court needed to assess if the Magistrate made the necessary findings regarding the objective elements of the statutory defences and whether the failure to mention the appellant's good character in the reasons constituted an error of law. The court also considered whether the complaint charging a single assault was indicative of latent duplicity.

In its reasoning, the Court of Criminal Appeal found that the Magistrate's reasons were inadequate in certain respects, particularly in failing to fully address the principles of self-defence and provocation. The court held that the Magistrate should have made explicit findings regarding the objective elements of the statutory defences and that the omission to mention the appellant's good character did not amount to an error of law. The court further concluded that there was no evidence of latent duplicity in the complaint. Ultimately, the appeal was allowed, the conviction was quashed, and a retrial was ordered.

Orders