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Griffen v Birch

Griffen v Birch

Case [2023] WASC 444 24 November 2023

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JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION:   GRIFFEN -v- BIRCH [2023] WASC 444
CORAM:   MITCHELL J
HEARD:   6 SEPTEMBER 2023
FURTHER WRITTEN SUBMISSIONS ON
22 SEPTEMBER 2023 & 16 OCTOBER 2023

DELIVERED          :   24 NOVEMBER 2023
FILE NO/S:   SJA 1047 of 2023
BETWEEN:   MARK THOMAS GRIFFEN
Appellant
AND
PETER ALEXANDER BIRCH
Respondent

ON APPEAL FROM:
Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram:   MAGISTRATE MAHON
File Number            :   AR 5817 of 2022

Catchwords:

Criminal law - Single judge appeal - Appeal against conviction for common assault - Where appellant was employed as a youth custodial officer at Banksia Hill Detention Centre and complainant was a juvenile detainee - Whether guilty verdict is unreasonable or unsupported by evidence - Whether magistrate erred by incorrectly interpreting and applying the Young Offenders Act 1994 - Whether self-defence requires a proportionate response

Legislation:

Criminal Code (WA), s 248, s 313(1)(b)
Young Offenders Act 1994 (WA), s 11, s 11B, s 11C
Young Offenders Regulations 1995 (WA), reg 71, reg 72

Result:

Leave to appeal granted
Appeal dismissed

Category: B

Representation:

Counsel:

Appellant	:	F M Hugo
Respondent	:	P A Femia

Solicitors:

Appellant	:	Tehan Legal
Respondent	:	State Solicitor's Office

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

Dansie v The Queen [2022] HCA 25; (2022) 274 CLR 651
DKA v The State of Western Australia [2019] WASCA 123
Egitmen v The State of Western Australia [2016] WASCA 214; (2016) 263 A Crim R 203
Elwin v Robinson [2014] WASCA 46
Gibbs v The State of Western Australia [2018] WASCA 68
Goodwyn v The State of Western Australia [2013] WASCA 141; (2013) 45 WAR 328
Hofer v The Queen [2021] HCA 36; (2021) 274 CLR 351
Kalbasi v The State of Western Australia [2018] HCA 7; (2018) 264 CLR 62
Lacco v Director of Public Prosecutions (WA) [2022] WASC 168
M v The Queen (1994) 181 CLR 487
Strahan v Brennan [2014] WASC 190
Technip Oceania Pty Ltd v Director of Public Prosecutions (Cth) [2021] WASCA 139; (2021) 251 LGERA 111
The State of Western Australia v Olive [2011] WASCA 25; (2011) 57 MVR 269
Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300
Wells v The State of Western Australia [2017] WASCA 27
WS v Gardin [2015] WASC 97; (2015) 48 WAR 494

MITCHELL J:

Summary

The appellant, a custodial officer at Banksia Hill Detention Centre, was charged with unlawfully assaulting the complainant, who was a detainee at the Centre, on 5 May 2022. That is an offence against s 313(1)(b) of the Criminal Code (WA) (Code). On 3 May 2023, the appellant was convicted of that offence after trial in the Magistrates Court. He received a fine of $3,000 with a spent conviction order and was ordered to pay costs of $264.30. The appellant now appeals against his conviction of that offence.
There is no dispute that the appellant assaulted the complainant by applying force to 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 Griffen v Birch

Details

AGLC: Griffen v Birch [2023] WASC 444
Case: [2023] WASC 444
Decision Date: 24 NOVEMBER 2023

CaseChat Overview and Summary

The appellant, Griffen, appealed against his conviction for common assault of a juvenile detainee, Birch, at Banksia Hill Detention Centre. Griffen, employed as a youth custodial officer, was found guilty of assaulting Birch, who was under his care. The primary judge's appeal was based on the contention that the guilty verdict was unreasonable and unsupported by the evidence, and that the magistrate erred by misinterpreting and applying the Young Offenders Act 1994. Griffen also argued that the magistrate did not correctly interpret the requirement for self-defence to be proportionate.

The court considered whether the guilty verdict was unreasonable, whether there was an error in the interpretation of the Young Offenders Act 1994, and whether the requirement for self-defence to be proportionate was correctly applied. The court examined the evidence presented at the trial and the magistrate's reasoning in arriving at the guilty verdict. The court also analysed the relevant provisions of the Young Offenders Act 1994 and the principles of self-defence under criminal law. The court concluded that the evidence supported the guilty verdict and that the magistrate did not err in interpreting the Act or in applying the principles of self-defence.

The appeal was dismissed. The court found that the evidence was sufficient to support the guilty verdict and that the magistrate's interpretation of the Young Offenders Act 1994 and the principles of self-defence were correct. The court held that the appellant's actions did not constitute a proportionate response to the situation and that the magistrate's decision was not unreasonable. The conviction for common assault was upheld.

Orders