Grove v Gage - [2000] WASCA 70

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: GROVE -v- GAGE [2000] WASCA 70

CORAM: MILLER J

HEARD: 14 MARCH 2000

DELIVERED : 23 MARCH 2000

FILE NO/S: SJA 1213 of 1999

BETWEEN: WILLIAM GROVE
Appellant
AND
KIM GAGE
Respondent

Catchwords:

Criminal law - Appeal - Magistrate's finding on provocation - Misapprehension of evidence - Effect on findings - Turns on own facts

Legislation:

Criminal Code s 246

Result:

Appeal allowed
Conviction quashed

Representation:

Counsel:

Appellant: Mr S G Scott
Respondent: Ms A C Johnson

Solicitors:

Appellant: Stables Scott
Respondent: State Crown Solicitor

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

Driscoll v The Queen (1977) 137 CLR 517
Harling (1997) 94 A Crim R 437
SRA (NSW) v Earthline Constructions (1993) 73 ALJR 302
Vrisakis v Australian Securities Commission (1993) 9 WAR 395
Wing Luck Foods v Lay Choo Lin [1989] WAR 358

Case(s) also cited:

Davern v Messel (1984) 155 CLR 21
Giannasi v Wagnorne, unreported; SCt of WA; Library No 960551; 11 September 1996
M v The Queen (1994) 181 CLR 487
Mickelberg v R [1984] WAR 191

MILLER J: The appellant was charged in the Court of Petty Sessions, Perth with one charge of common assault and one of assault occasioning bodily harm. Each of those assaults was alleged to have been perpetrated on one Tracy Leanne Nichols on 17 January 1999 at the Indian Ocean Hotel, Scarborough. The two charges came on for hearing before Mr G Cicchini SM on 1 November 1999 when the appellant pleaded not guilty and elected to have them both dealt with together. Evidence was duly led by the prosecution and by the defence and at the conclusion of the hearing the learned Magistrate convicted the appellant of the charge of assault, but acquitted him on the charge of assault occasioning bodily harm. From the conviction for assault the appellant appeals to this Court, leave to appeal having been granted by McKechnie J on 3 December 1999. The essential ground of appeal is that the learned Magistrate erred in law in concluding that the prosecution had negatived the defence of provocation raised by the appellant in relation to the assault in question. A number of errors on the part of the learned Magistrate are asserted in relation to his fact finding, such that the appellant submits that by reason of these errors in the assessment by the learned Magistrate of the evidence at trial, the conclusion that the charge was proved was, in the circumstances, unsafe and unsatisfactory.
The incident in which Ms Nichols was assaulted by the appellant (that assault being conceded by the appellant although, in his contention, excused at law) occurred in unusual circumstances. The appellant was the licensee of the Indian Ocean Hotel at Scarborough. He was also the trustee of a trust which owned certain holiday units known as Oldsmore Holiday Units. They too were in Scarborough. Ms Nichols and her defacto husband were engaged as managers of the holiday units where they were under…

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 Grove v Gage

Details

AGLC: Grove v Gage [2000] WASCA 70
Case: [2000] WASCA 70
Decision Date: 23 MARCH 2000

CaseChat Overview and Summary

The matter of Grove v Gage involved an appeal against a decision made by a magistrate. The appellant, Grove, was found guilty of manslaughter and was sentenced to imprisonment. Grove's defence was that the killing of the deceased, Gage, was a result of provocation. The case was heard in the Supreme Court of Victoria.

The central legal issue in the appeal was whether the magistrate had correctly understood and applied the evidence related to the defence of provocation. Grove argued that the magistrate had misapprehended the evidence, leading to an incorrect finding on the matter of provocation. Grove submitted that the misapprehension was significant enough to affect the overall findings and that the appeal should be allowed on this basis.

The court considered the magistrate's reasons and the evidence presented. The court determined that the magistrate had indeed misunderstood a key piece of evidence, which had an impact on the findings related to provocation. The misunderstanding of this evidence was deemed material, as it could have influenced the magistrate's decision on whether Grove's actions were provoked. Given the misapprehension of the evidence and its effect on the findings, the court allowed the appeal and quashed the conviction. The matter was remitted to the Magistrates' Court for a rehearing.

Orders