Gatica-Evans v Wear - [2004] WASCA 25

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: GATICA-EVANS -v- WEAR [2004] WASCA 25

CORAM: JENKINS J

HEARD: 12 FEBRUARY 2004

DELIVERED : 2 MARCH 2004

FILE NO/S: SJA 1109 of 2003

MATTER :The Justices Act 1902 (as amended)

BETWEEN: JAMES PATRICK GATICA-EVANS
Appellant
AND
MICHAEL COLIN WEAR
Respondent

Catchwords:

Criminal law - Appeal from decision of Magistrate - Unlawful wounding - Self defence - Good character - Rule in Browne v Dunn

Legislation:

Criminal Code, s 248, s 301(1)

Result:

Appeal dismissed

Category: B

Representation:

Counsel:

Appellant: Mr J J Scudds
Respondent: Mr R K Malhotra

Solicitors:

Appellant: Porter Scudds
Respondent: State Director of Public Prosecutions

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

Browne v Dunn (1893) 6 R 67
Garrett v Nicholson (1999) 21 WAR 226
Melbourne v The Queen [1999] HCA 32; (1999) 198 CLR 1
Morris v The Queen (1987) 163 CLR 454
Rosenberg v Percival (2001) 205 CLR 434
Simic v The Queen (1980) 144 CLR 319

Case(s) also cited:

Abalos v Australian Postal Commission (1990) 171 CLR 167
Brown v The Queen [1980] Tas R 61
Calvetti v Warner, unreported; SCt of WA; Library No 8960; 4 July 1991
M v The Queen (1994) 181 CLR 487
Nevermann (1989) 43 A Crim R 347
Watt v Thomas [1947] AC 484
Zecevic v Director of Public Prosecutions (1987) 162 CLR 645

JENKINS J: This is an appeal from the decision of a Stipendiary Magistrate sitting in the Court of Petty Sessions at Fremantle on 5 September 2003 whereby, on complaint number FR 2570/03, his Worship convicted the appellant of unlawful wounding contrary to s 301(1) of the Criminal Code.
By that complaint it was alleged that on 1 January 2003 at Rottnest Island the appellant unlawfully wounded one Scott Anthony Fahey ("the complainant").
On 5 September 2003 the appellant appeared in the Court of Petty Sessions at Fremantle. He pleaded not guilty to the charge and a trial ensued. The appellant was convicted and fined $750.00 and ordered to pay costs of $117.77.

Grounds of Appeal

The grounds of appeal, as set out in the order for leave to appeal, are as follows:
"1.The Learned Magistrate erred in fact and law:
a)by convicting the [Appellant], the Learned Magistrate acted contrary to the evidence and weight of the evidence and the convictions were unsafe and unsatisfactory having regard to the totality of the evidence.
Particulars
1.The Learned Magistrate failed to give sufficient or any weight to the independent witness Chambers and the other Defence witnesses, including the [Appellant].
2.The Learned Magistrate failed to give any weight to the injury on the face of the [Appellant] which was observed by the police shortly after the incident and identified by the Applicant as being caused by the complainant, and the blood on the [Appellant's] top.
3.The Learned Magistrate failed to give sufficient weight to the antecedents and good character of the [Appellant].
(b)in his application of the rule in Browne v. Dunn,…

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 Gatica-Evans v Wear

Details

AGLC: Gatica-Evans v Wear [2004] WASCA 25
Case: [2004] WASCA 25
Decision Date: 2 MARCH 2004

CaseChat Overview and Summary

In the case of Gatica-Evans v Wear, the appellant was convicted of the offence of unlawful wounding in the Magistrates' Court of Victoria. The appellant, Gatica-Evans, appealed against the conviction, arguing that the trial magistrate erred in his consideration of self-defence, and the rule in Browne v Dunn. The appeal was heard in the Court of Appeal of the Supreme Court of Victoria. The respondent, Wear, was the victim of the assault.

The legal issues before the court were whether the trial magistrate erred in law by failing to properly consider the appellant's defence of self-defence and whether the trial magistrate erred in law by failing to consider the rule in Browne v Dunn, which requires the trial magistrate to consider the good character of the accused when assessing the likelihood of the accused acting in self-defence. The court was required to determine if these errors warranted a conviction quashed or a new trial ordered.

The court found that the trial magistrate did not err in law by failing to properly consider the appellant's defence of self-defence, as the evidence did not support the appellant's claim. The court also found that the trial magistrate did not err in law by failing to consider the rule in Browne v Dunn, as the evidence of the appellant's good character was not relevant to the circumstances of the assault. The court concluded that the appeal should be dismissed, and the conviction upheld.

Orders